Unaccountable judges

Comment by an experienced Canadian police officer

Courts are about testing. Testing the strength, the attributes, of a case. If a case is negligent, other players in the courtroom have a "duty of care" to expose all the flaws and poke holes in the character of the case. That's their job. But it doesn't always happen. Any judge, worth his or her salt, will admit that at times he or she has been dumbfounded by the questions that are not being asked by defence counsel. Questions that could neutralize the jeopardy of seemingly damning evidence. Questions that could coolly highlight investigative error. Questions that could stave off conviction and perhaps wrongful imprisonment. The high court's ruling ignored such negligence.

Further up the food chain there are the judges who decide things in a calm atmosphere during civilized hours.

A spotless investigation can still yield a weak case and so it is in sterile chambers, with time and supposed wisdom, that judges sit and among other things write out directions to juries, setting out the rules that must follow to determine innocence or guilt. Sometimes those instructions are dead wrong. Sometimes people are wrongly convicted and go to jail because of those directions. And sometimes years pass before the appeal that lands on the judge's negligent reasoning.

One innocent man in jail is one too many -- regardless of who is responsible. To take wrongful conviction inquiries beyond cheap, legal theatre the input of investigators, all counsel, the accused and the judge is needed. Maybe even the jury. And at the conclusion of an agenda-free inquiry there should be clear guidance as to where the negligence lies. An innocent man seeking justice needs to know everyone who's at fault for facilitating the circumstances that allowed him to rot in jail for something he didn't do.

But predictably, the only people covered in the ruling are the police. The grunts, the low rung on the ladder. The Supreme Court is not likely to ever hold judges to similar account because unlike the police, who the court says shouldn't be concerned by the threat of a civil suit, the judiciary's independence would surely somehow be compromised by the same standard. And that will ensure full accountability remains that elusive goal of justice.

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