Investigating the Sûreté du Québec, the Poitras commission recalled in 1998 that “police forces were created not to fight against the laws, but to apply them. The police cannot therefore take pleasure in a reactive, not to say reactionary, attitude. Charter values [canadienne] are to be affirmed. Police forces must promote them! “.
Posted at 12:00 p.m.
To legitimize deviant actions and inflate everyone’s confidence, some police officers sometimes use misleading arguments. By proposing to change the rules of the game against white-collar criminals, crooked politicians and corrupt civil servants, the commissioner of the Permanent Anti-Corruption Unit (UPAC) Frédérick Gaudreau is creating a diversion.1
At a press conference on November 9 concerning the management of UPAC, the commissioner took note of a damning judgment rendered in the case of the former mayor of Terrebonne. The court severely criticizes the work of the investigators (in particular the noh 2 of UPAC) and prosecutors.
Asked about the Machurer investigation (active for eight years), the noh 1 of UPAC called it “the elephant in the room”. Mr. Gaudreau explained that he had to take into account a “universe of legal considerations”.2
Two months later, the commissioner cast a wide net. It would be the exponential increase in the volume of data seized in investigations and “the omnipresence of lawyers protected by professional secrecy within the companies concerned, the complexity of the process of disclosure of evidence and the need to try the accused within a fast” which paralyzes the work of the UPAC.
This justification cannot explain the slowness of the Machurer investigation. The volume of things seized is minimal and several hundred witnesses were met; some twice.
Finally, on the negative impact of the recurring leaks of police information from UPAC and the interminable related investigations, Commissioner Gaudreau maintains a profound silence.
According to the Supreme Court3, the judge has the obligation to act as guardian of the Constitution and of the rights granted to citizens. That said, proactive management of the judiciary makes it possible to make the administration of justice more flexible.
In our system, any rule of law based on a principle calls for adversarial debate. Although it can lengthen proceedings, procedural law provides guarantees to litigants. Its respect has figure of internal morality of the legal game.
For the most part, the lengthening of certain files occurs at the stage of the preliminary arguments, that is before the administration of the evidence at trial. The fear of error leads judges to allow prosecutors to carefully scrutinize the legality of evidence collected by the police.
At the slightest backlash, the interruption of the process is sometimes required for verification, reply or contradiction. It could be shortened. Occupying a rocking position between the parties, the judge must put on his manager’s, arbitrator’s and decision-maker’s clothes.
In long and complex court cases, the disclosure of evidence remains a minefield. In 2006, a federal advisory body 4 opined that most (and not all) of the prosecution evidence should be handed over to the accused at liberty one month after the indictment was filed. For a detainee, the period should not exceed 14 days.
There is no confidence without trust and no trust without secrecy. Solicitor-client privilege derives from a citizen’s right to have a confidential relationship with a legal adviser.
According to the Supreme Court, solicitor-client privilege is based on the functional needs of the administration of justice. The complexity of the legal system requires professional expertise. Failure to obtain legal advice would jeopardize access to justice.5
The frontal attack on the professional secrecy of lawyers led by the UPAC commissioner is doomed to failure. Nevertheless, in the public interest, we wish him a lively recovery of his organization.
3. R. v. Auclair, 2014 SCC 6 (CanLII)
5. R. v. Campbell, [1999] 1 SCR 565