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CBA president reflects on massive changes

|Written By Kirsten McMahon

ST. JOHN''S - This year''s Canadian Bar Association conference kicked off its opening plenary with discussion about the importance of an independent bench and bar in the wake of terrorism and a keynote speech about prosecuting public corruption.

U.S. Attorney for the Northern District of Illinois Patrick Fitzgerald says mail fraud statutes are a strong, flexible tool for prosecutors. Photo: Jared Adams/CBA

The conference, which was held in St. John's and had a whopping 1,200 lawyers and judges in attendance, started off with an opening ceremony on Aug. 13 with an address by past CBA president Brian Tabor.

As the dark, fifth anniversary of Sept. 11 approaches, Tabor said it's time to reflect on the massive changes that have taken place since then.

"Since that day, both the public sector and various private interests have been busy redrawing the landscape of our Canada," he said.

"There has been an astounding array of law- and justice-related matters that have erupted in this country over the last five years," he said, including: the Anti-terrorism Act; increased issuing of security certificates under the Immigration and Refugee Protection Act; Proceeds of Crime (Money Laundering) and Terrorist Financing Act; and various attempts to politicize the judiciary - "the televised questioning of the new Supreme Court Justice Marshall Rothstein by MPs represented a new low in the quest to maintain the independence and impartiality of our judges," said Tabor.

As well, there has been an escalation of criminal punishment and mandatory minimums "despite data, despite documented evidence in both Canada and the United States that mandatory minimums have no deterrent effect on crime," he said.

Keynote speaker Patrick Fitz-gerald also touched on Sept. 11 in his address on prosecuting public corruption, noting that the top priority of all the U.S. attorneys' offices in America has been terrorism, followed by violence and public corruption.

Supreme Court Chief Justice Beverley McLachlin said prosecuting public corruption is "a subject that has become increasingly important in both our countries.

"The role of the prosecutor of those accused of crime is too little understood. Likewise, the role of lawyers in defending those who have been accused of crime, including public officials accused of corruption, is little understood by the average Canadian."

Fitzgerald, the current U.S. Attorney for the Northern District of Illinois, got his law degree from Harvard, practised civil law for a while and became a prominent figure in New York City, where he cut his teeth in the prosecution of the Gambino crime family, led by Mafia Don John Gotti.

Fitzgerald was also a prosecutor against 12 men in the 1993 World Trade Center bombing, part of a team of prosecutors investigating Osama bin Laden, and was chief counsel in the prosecution related to the 1998 U.S. embassy bombing in Kenya.

Now serving as his district's top law enforcement official, Fitzgerald explained the Mail Fraud Statute, a powerful and flexible tool in prosecuting public corruption.

The statute passed in 1872, and a Supreme Court justice at the time said the purpose was "to prevent the frauds, which are mostly gotten up in the large cities, by thieves, forgers, and rapscallions generally for the purpose of deceiving and fleecing the innocent people of the country."

Fitzgerald said it has been used in a flexible manner and is "the first line of defence against virtually every new area of fraud to develop in the U.S."

Basically, there's a section in the statute about the right of a citizen to honest services. If someone does something using the mail that causes a citizen to be deprived of their rights to honest services by their government, that person is guilty of a crime.

Fitzgerald said, however, there are criticisms that the statute makes the federal government too powerful in state and local affairs.

"In most of the cases that are prosecuted, there's often a very good reason why the federal government can't stand back and let someone else do it," he said.

Also, he said there is the argument that the vague nature of the statute means that defendants may not understand the honest services theory. But he added that argument doesn't wash with him.

"The truth is, when people rob banks and deal drugs, they may not be able to cite the statute that says they can't do it, but they understand. If you look at the mail fraud prosecutions and honest services theories . . . people know it when they see it," he said.

"Now they may have all been charged under the mail fraud statute but each should have known what they were doing was wrong.

"I'll also note in most of the cases there's an act of concealment," he said. "I would have to say this, we hear the argument that these statutes are too vague and they don't know they are violating them, but there's an awful lot of confused people who are smart enough to know they should not burn, shred, delete [evidence]. That gives the impression that it's not as vague as people would like to believe."

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