Editorial: Crown should explain actions in Jaffer case

As political commentators were putting it last week, the withdrawal of serious criminal charges against former federal Conservative MP Rahim Jaffer was an issue that would certainly have the Tim Hortons crowd talking.

Of course, a common refrain was that Jaffer got off lightly due to his political connections, a claim bolstered by Justice Douglas Maund’s now-famous comment to the ex-MP: “I’m sure you can recognize a break when you see one.”

Opposition politicians were clamouring for answers all week. In many cases, the comments were misguided, in particular those attacking the federal government. Given that it was the province that led the prosecution, it was the Ontario Ministry of the Attorney General that people should be going to for answers.

Provincial officials did eventually weigh in, with Attorney General Chris Bentley saying calls for a more complete explanation had merit.

But even one of the most vocal critics, NDP MP Joe Comartin, acknowledged it was unlikely Jaffer got favourable treatment. It’s the Liberals, of course, who run the province, so it’s difficult to see how they’d interfere on behalf of a Tory such as Jaffer.

The issue is tricky, however. On the one hand, while people are talking about treating everyone, including politicians, equally, it’s routine for Crown prosecutors to offer little explanation when they withdraw charges beyond the boilerplate and often unsatisfactory line about not having a reasonable prospect of conviction.

That’s exactly what the Crown said in Jaffer’s case when it withdrew impaired driving and cocaine possession charges against him. So given the importance of equal treatment, shouldn’t that convention apply to him as well?

Already, the Toronto Star has quoted sources saying a police officer made an error during a strip search of Jaffer at the time of the Sept. 11 incident. But there’s an important issue at stake here.

The Ministry of the Attorney General says the presumption of innocence and fairness considerations limit how much prosecutors can say in these cases, regardless of who the accused person is.

But at the same time, law professor Alan Young says that while the Crown has no obligation to justify its exercise of discretion in a case unless there’s some evidence of a misdeed, there’s nothing preventing it from doing so.

That being said, the reality is that prosecutors know that the more they talk about their decisions, the greater the potential for trouble later on. But in many ways, the province is in a catch-22. By offering an explanation for how it treated Jaffer equally, it will have failed to do so in other ways.

The case also demonstrates the competition between transparency in the justice system and maintaining the presumption of innocence.

It’s a delicate balance, but in this instance, there is one fact that pushes the issue in favour of transparency: Maund’s comments about a “break.” As a result, the Crown should exercise its discretion to say why it dropped the criminal charges against Jaffer.
- Glenn Kauth

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