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Why A-G Oppal Must Resign

His dumb comment could cause a mistrial.

By Rafe Mair 20 Nov 2006 |

Rafe Mair writes a Monday column for The Tyee. His website is

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BC Attorney General Wally Oppal

We have, in this semi-lawless country, two daft attorneys general.

The federal chap, Vic Toews, distinguished himself in the 2004 federal election when on the eve of the ballot he accused the Liberals of being soft on kiddie porn.

It started when a man was sentenced to prison for a brutal sex slaying of a young Toronto girl. The assailant admitted that he was very fond of kiddie porn he accessed through his Internet connection. Toews suggested that because the federal Liberals, very much including then Prime Minister Chrétien, hadn't done anything about this stuff on the Internet, they bore a great responsibility for this tragic death.

The public turned out to be on the Liberals' side, which scarcely meant it was uncaring. The voters (though not, lamentably, in Toews's riding) thought that this was a scandalous accusation, trying to take advantage of a terrible crime by making it into a political issue. And they voted accordingly. The Conservatives lost in a tight race and many, including me, thought Toews lost it for them.

Now Mr. Toews has another bright idea. Policemen will be asked to sit on the council that recommends people for the bench.

Police would inject bias

Now I yield to no one in demanding that there be more transparency in the appointment of judges. I have long favoured open hearings for all superior court judgeships. But loading the council with interested pressure groups is hardly what's needed. The proper considerations are whether or not the candidate is a good lawyer in the sense that he knows the law, is of good character and is fair -- "fair" including the absence of prejudice, as far as any human can be.

What does the policeman add to this? "I watched Bloggs in practice and noted he only took defence cases. He was always babbling on about 'reasonable doubt,' onuses of proof, prosecutor fairness and almost always challenged police evidenced. Hawkeye, on the other hand, was a brilliant prosecutor who gave no quarter. Sometimes when there was evidence that might help the accused and thus deny justice as we saw it, he didn't tell the defence lawyer. When we told him we wanted John Q Public prosecuted, Hawkeye never said there was insufficient evidence but said, charge that sleazy bugger and I'll get him convicted. On sentencing, he wanted everyone to be put away as long as possible. In fact ,we knew him as Hang 'em High Hawkeye. If we want to rest secure in our beds, Hawkeye is our man."

Now, if Toews doesn't want policemen on the panel so they can a get a judge that's "on their side," what's it all about? And, critical question here: Will a member of the defence bar also be on the panel to ensure that the criminals have a friend in the courtroom?

Blame the lawmakers

Mr. Toews would have us think crime runs rampant because judges are always lenient. The way to cure this, apparently, is to fix things so that acquittals are kept to a bare minimum. Even if the police blow the prosecution, jail the bugger anyway because everyone knows he's guilty.

Notably, Toews fails to note that while judges implement that law, politicians are responsible for making that law, including the penalties to be imposed.

Judges goof. Judges sometimes do things they ought not to -- that's what appeal courts are all about. But when you think of the thousands and thousands of cases heard around this land every day, we should thank God we're so well served.

Oppal's sin

Here in B.C., our attorney general must resign over remarks he made about the infamous Robert Pickton case. He may have caused a mistrial. The Honourable Wally Oppal, QC, made it clear that he was on the side of the prosecutors -- that he was B.C.'s top prosecutor and he could say what he pleased.

I find it utterly beyond belief that a former judge, a veteran of both our Supreme Court and our Appeal Court, should be so ignorant of the traditions of criminal law and prosecutions that have made our courts fair and seen by the world as such.

Mr. Oppal would have learned on his first day taking criminal law in law school -- that the accused is presumed innocent until found guilty beyond a reasonable doubt and that the Crown neither wins nor loses, but presents Her Majesty's case fairly. The Crown has obligations that policemen don't like very much, such as disclosing all relevant evidence to the defence even when the Crown doesn't intend to call that evidence. And to ensure that all the evidence is before the Court, even that which is adverse to the Crown's case.

Has Oppal so quickly forgotten the three Ms: Marshal, Milgaard and Morin? All men found guilty by false police evidence or investigations; all men who spent years in jail for an offence they didn't commit; all men who, but just a few decades ago, would have been hanged long before the true story emerged.

Every once in a while, we must pause and examine what our traditions are. Keeping an accused innocent until proved guilty and forcing the Crown to be fair means sometimes people will "get away with it." (As we have seen above, even this hasn't helped some accused.) This is the insurance premium people in a free country pay to ensure that a police state does not befall us.

Guiding precedent

But why do I say Oppal must resign?

Here's a recent precedent. Back in the late 1980s, the then attorney general had a private conversation with one of his deputies intercepted and recorded. In this conversation, Smith said some unkind things about a lawyer acting in a case in which the Crown was involved. When the matter became public, Smith promptly resigned. I suggest that Mr. Smith's deeds were far less serious than those of Mr. Oppal.

I should add that some of Mr. Smith's conversations to others were not the kind that Mrs. Smith would have liked hearing, but these were irrelevant except as personal embarrassments to Smith.

The sad part is that Toews and Oppal will get away with this conduct so unbecoming their offices. That's because the mainstream media won't hold them accountable, and so the public won't either.

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