Quebec's problem with due process and the rule of law

By Beryl Wajsman on January 26, 2017

"The means are all important. The means by which a society finds guilt or innocence is what determines whether it has a place at the table of civilized nations." ~ Justice William O. Douglas

Attorney-client privilege. Guilt beyond a reasonable doubt. Freedom of the press as the fourth estate of government. Confidentiality of journalists' sources. Pretty straight forward stuff right?Any tenth-grader in a civics class gets these. So why is it that so many Quebec prosecutors and judges not get it? 

This week alone we have been treated to egregious violations of our most sacred principles of justice. Early this week, police and prosecutors admitted that they had listened to and transcribed conversations between respected criminal attorney Isabel Schurman and her client Frank Zampino. Me. Schurman said that her jaw dropped and that "she felt that she was living in a parallel universe" as Superior Court Judge Poulin revealed the wiretaps. There will be hearings on why they were authorized and why they were listened to and transcribed. The Supreme Court has held in numerous cases that the attorney-client privilege is sacrosanct. In fact, the procedures in Quebec are that when a court-authorized wiretap on an accused reveals conversations with attorneys, that portion must be made electronically "inaccessible." Why were these principles and procedures not followed with Me. Schurman, a vice-chair for criminal law of the Canadian Bar?

due_process.jpgToday, Judge Louise Provost finally brought down her judgment in the Michael Applebaum case. Judge Provost ruled that: 1: it was true that there was no direct or physical evidence linking Applebaum to bribery; 2: it was also true that three of the four Crown witnesses were themselves accomplices and were granted immunity from prosecution and admitted to never talking to, meeting with or paying Applebaum; 3: but since Applebaum's former Chief of Staff Hugo Tremblay - who admitted collecting money and was also  granted immunity for cooperating - "stood up" under cross-examination and was not a "témoin taré" he can be believed; 4: that because Applebaum was "whispering " on wiretaps we can "infer" that there was questionable behaviour going on and that therefore...5: the prosecution met the standard of "guilt beyond a reasonable doubt." Really now? Circumstantial evidence is sufficient? One witness with his own agenda is enough to meet that standard? The principle was established precisely to avoid circumstantial convictions! Somebody has to go back to law school.

I hold no brief for Applebaum or Zampino. But when central principles of justice are compromised, I assure you we are all in trouble. U.S. Supreme Court Justice William O. Douglas once wrote, "The means are all important. The means by which a society finds guilt or innocence is what determines whether it has a place at the table of civilized nations."

All these events unrolled against the backdrop of last fall's Lagacé affair where police obtained permission from the lowest level judge possible - a Justice of the Peace of the Quebec Court (not even the Superior Court) - to listen in to respected journalist Patrick Lagacé's cellphone conversations and to follow him on his GPS so that the police could find out which police officers were talking to Lagacé about misfeasance in the Police Department. It later came put that police used the same illegal oversight on six other reporters. Some police investigators heads rolled, but nowhere near enough and too many questions remain unanswered.

It is becoming sadly evident, that in our city law is too often compromised for convenience and justice mortgaged to mob mentality. 


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Beryl P. Wajsman

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