Friday, 20 December 2013

In which I disagree with the Victoria Times Colonist about the function of a criminal trial

An editorial in this morning’s Times Colonist bears this heading: Malodour clings to BC Rail issue.

The editorial is a review of the recent BC Auditor General report on taxpayer-funded indemnities for public servants charged with criminal offences.  My purpose here is not to analyse that report, though it certainly bears reading, because of its key finding that there was no political interference in the decision to waive the defence legal fees in the Basi Virk case.  My concern is with a perspective held by the Times Colonist about the trial itself. 

The Times Colonist expresses frustration that the trial ended in the way that it did. Here is some of what they say:

Most taxpayers, if they had known they were already on the hook for $18 million, would have willingly spent another $2 million to get some answers. Witnesses testifying under oath could have provided some of those answers, but that process was short-circuited. –

The problem is with the phrase, “To get some answers”. Answers to what?  There was only one “question” that needed to be answered in the case: the guilt or innocence of the accused.  That question was definitively answered.  The case was not about anything else. It was a criminal trial.  Full stop.  There were no more questions to be answered.

The Times Colonist says, “Witnesses testifying under oath could have provided some of those answers, but that process was short-circuited.” I disagree with both the premise and the conclusion.  The function of the witnesses in the trial was not to provide “answers” to a wide range of questions about the BC Rail “scandal.” It was to give evidence relevant to the question of the guilt and innocence of the accused.  And the trial was not short-circuited. It ended with a guilty plea, a voluntary admission to the offence. An admission, in other words, that the cases against the accused were going to be proved beyond a reasonable doubt.  That the defences offered during the case – and that presumably informed the lengthy cross-examinations of the Crown witnesses – did not hold water; were, if I may put it this way, fishing expeditions without fish.

The Times Colonist presumably wishes that the Basi Virk trial had been a royal commission.  It wasn’t.  The criminal justice process is already burdensomely complex and expensive.  Arguing that it should serve wider purposes of public inquiry than the guilt or innocence of those accused of crimes, runs contrary to what we should really focus on, namely how to make criminal trials faster, shorter, and less expensive, without compromising the right of an accused to require the Crown to prove the case beyond a reasonable doubt.  The questions to be asked in the aftermath of the Basi Virk trial are about why the trial and pretrial took so long and cost so much, and what we can learn to do a better job of managing such cases.  Those, I respectfully submit, are the real questions that still need answering.