Published on Saturday, Mar. 13, 2010 12:00AM EST Last updated on Saturday, Mar. 13, 2010 10:40AM EST
Globe and Mail
By Christie Blatchford
Is there a double standard at work in the story of Rahim Jaffer, the former Conservative MP who this week saw two serious criminal charges dropped against him as he pleaded guilty instead to a lesser one of careless driving?
Oh, you bet there is, but it's not what you've heard.
The real double standard is that Mr. Jaffer has been painted as being every bit as guilty of the charges (excessive blood alcohol while driving and possession of cocaine) as if he'd been convicted of them.
When the 38-year-old former politician appeared in court in Orangeville on Tuesday, he was facing those charges in connection with his arrest by the OPP last fall.
Telling the judge she had carefully reviewed the evidence, Crown attorney Marie Balogh said there was no reasonable prospect of conviction on those counts and withdrew them, and Mr. Jaffer pleaded guilty to the careless driving count; he had been driving at 93 kilometres an hour in a 50-kilometres-an-hour zone when he was stopped.
He was given a fine of $500, and already had agreed to make a $500 charitable donation.
As he was presumed to be innocent when he was charged, so did he leave the courthouse with that presumption as his shield; you could fairly call him a careless driver, period.
But there in Question Period just hours later was Liberal MP Anita Neville crowing, "Members of this government are always quick to comment on any court judgment that doesn't align with their get-tough-on-crime rhetoric. They always say, 'You do the crime. You do the time.' What then is this government's comment on the dangerous driver in possession of illicit drugs who gets off with no record and a $500 slap on the wrist?"
She went at it again a bit later, shrilling, "The Conservatives are conspicuously silent only when the law is being flouted by one of their own ... why the double standard?"
Her suggestion was unmistakable: Mr. Jaffer got a sweetheart deal because he's a powerful guy who's married to a Tory minister (Helena Guergis, the federal Minister for the Status of Women) and mysterious strings were pulled on his behalf. He was guilty, he had flouted the law, and gotten away with something.
It is absolute hogwash.
This sort of plea arrangement is absolutely the norm in Canadian courts. As the Criminal Justice Review Committee noted in a 1999 report for the Ontario government, the vast majority of all criminal cases in Canada - 91.3 per cent of charges at the time in Ontario - are resolved by guilty pleas or by the prosecutor withdrawing charges, without the necessity of a trial.
What Mr. Jaffer, his lawyer and the prosecutor had engaged in was nothing more than the same process that happens hundreds of times a week across the country - plea bargaining or, as the participants prefer it be called because it lends dignity to a crudely pragmatic system, resolution discussions. These are approved discussions held in private, deemed confidential and protected by solicitor-client privilege, with both sides having access to the evidence.
During the Jaffer discussions, the prosecutor apparently realized that what she had was a dog's breakfast of a case. Because of the protected nature of the discussions, we don't know precisely what the problems were, but they must have been substantial for Ms. Balogh to determine she had no shot at conviction. (Most often in such cases, there are problems with the legality of the police search, or the alleged discovery of the "drug," or the "drug" isn't a drug, or it was someone else's.) And if there was any pressure in the air upon the prosecutor because of Mr. Jaffer's prominence and connection to the federal government, it would have been a pressure to proceed with the case, not the other way around: You'd have to live in a cave not to understand that there would be howls of outrage if Mr. Jaffer were to be seen getting a kiss, which is of course exactly what has happened.
Would Canadians have preferred that Ms. Balogh, knowing her case was a mess and that Mr. Jaffer would be acquitted, go ahead with the charges anyway? At least one federal politician appears to think so. Former trial lawyer and New Democrat Joe Comartin was quoted by one columnist this week saying, "There isn't a Canadian I think who would believe that he or she, faced with the same set of facts that Mr. Jaffer was faced with, would have at the very least had to go through a trial." Really? Does Mr. Comartin somehow know what those facts were? Has he forgotten that plea discussions are protected?
Some commentators are demanding absurdly that Mr. Jaffer himself issue a Tiger-Woods-style mea culpa and explain himself, as if he were still an MP, not merely married to one.
There are rare instances where the result of a plea bargain is so egregious - Karla Homolka's 12-year sentence for her role in the deaths of three young women - that an explanation is warranted, and in that case, however unsatisfactory the explanation was, the details of the plea discussions were made public in court. There are others where it so looks as though the fix was in - my own pet peeve, the recent dropping of a private charge against OPP boss Julian Fantino by the same ministry vigorously prosecuting the man who laid the complaint - that a little outrage is in order.
But we don't get to call Ms. Homolka a murderer, because she was never convicted of murder. We don't get to call Commissioner Fantino an influence-peddler, because the charge never went to trial, and so he isn't. How is it that Ms. Neville gets to smear Mr. Jaffer? Oh yeah, because he's a Tory, she's a Liberal and it happened in the House of Commons.
Do remind me: Why is it everyone was so keen to get these folks back to work?