Want to learn something?
Probably one of the better-known quotes in legal history followed a very run of the mill motorcycle collision. It was penned in 1924 during the appeal of conviction resulting from the defendant - Mr. McCarthy, driving his motorcycle and colliding with another motorcycle which was driven by a Mr. Whitworth. Mr. Whitworth sustained injuries as a result of the collision, which resulted in criminal charges being laid, but Mr. Whitworth also sued civilly, engaging Langham, Son and Douglas.
The criminal proceedings were heard before a panel of judges in Sussex. The court clerk was a Mr. Langham, and if that name seems awfully familiar, it’s because Mr. Langham was also a named partner of the law firm that was engaged to sue McCarthy for damages. But that’s not a problem! Mr. Langham was on a holiday at the time so the court tapped… his younger brother… who was also a partner at that law firm… to act as deputy clerk on the day of the hearing. This seemed like a good idea, at the time, I suppose.
After the hearing, the panel retired to their chamber to deliberate, which is par for the course. The deputy clerk also retired with them, which is also par for the course, but some of the more astute among you probably already see a problem. They didn’t in 1924, which is why this case was important. The justices returned to court, declared Mr. McCarthy guilty, and imposed fine of 10 pounds plus costs.
Mr. McCarthy appealed the decision on several grounds, one of which was that it was improper for the clerk to have retired to deliberation with the judges because the clerk was a partner of the law firm which was engaged against him civilly.
The King’s Bench, presided by Lord Hewart, issued notice and the judges of the Sussex panel filed an affidavit saying that although the deputy clerk had retired with them, he had held off from engaging in discussion on the case and they arrived at their decision in an unbiased manner. The counsel for the Sussex panel also argued that while the deputy clerk did retire with the judges, he did not take any part in their deliberations.
The judgement that followed would contain a historic sentence, often repeated for at least the next hundred years. Lord Hewart delivered his judgement on November 9, 1923. After setting out the facts, he said that that he fully accepted the statements contained in the affidavit of the Sussex panel. He accepted that the presence of the deputy clerk did not influence their decisions and that he did not participate in their deliberations. He assumed and accepted that the deputy clerk had abstained from referring to the civil case which the law firm had been engaged to pursue the claim for damages against McCarthy.
But all of that was irrelevant - despite explicitly accepting these facts and also the fact that the conviction was not influenced by the presence of the deputy clerk, Lord Hewart overturned the conviction by observing the following sentence:
It is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.
He went on to observe that the question was not whether the presence of the deputy clerk had influenced the decision or whether his firm, being involved in the civil case, had any role to play in the conviction. Lord Hewart went on to observe that what was important was not what was actually done, but what might appear to have been done and held:
Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.
Cool. Why were you thinking about hundred-year-old cases?
Because of some current Canadian events.
As some background… Canadian Prime Ministers have kind of famously over-promised and under-delivered on election issues in the last few cycles. In particular, constitutions are hard to change by design, and the reality in Canada is that the likelihood of opening the constitution is functionally impossible. Which was why Stephen Harper promising Senate Reform was kind of stupid. Likewise for Justin Trudeau’s promise of Election Reform.
Those were things that were never going to happen. Things that were possible to happen, but have not, are also plentiful, but most relevant to this conversation are two: 1) There’s been chatter up here on foreign election interference as well, and 2) There’s been calls for a non-partisan system for deciding on high-profile appointments.
I’ll take those in reverse.
First off, Political appointments have always been… well… political, but in recent history, it’s been worse than usual. We’re not quite at JFK-hiring-his-brother-on-as-the-United-States-Attorney-General-despite-his-brother-not-being-a-lawyer levels of corruption yet, but there’s been an awful lot of family members and unqualified party donors tapped recently, *cough*Julie Payette*cough*.
This is something that I actually think America does better than Canada. These positions are appointed by the Prime Minister, without consultation, and without avenues for relief. Which means that Trudeau owns them, for better or worse.
Second, There’s been some election interference! The Liberals are hyperfocused on Russian hackers and inappropriate ad buys, because of course they are. And don’t get me wrong, Russian hacking and buying ads aren’t good, but I’m not sure it’s very effective either.
Much more important, perhaps, would be a recent story about the Communist Party of China (CPC) threatening the family of a current Chinese-Canadian Member of Parliament (think Congressman) for votes in the house that the CPC doesn’t approve of. This story was wild - It included allegations of CPC agents operating de facto police departments on Canadian soil, and the office of the Prime Minister being aware of what was going on, but sluggish in action.
This story, and some others, prompted bi-partisan calls from the NDP and Conservatives to hold an investigation into the actions of Beijing. The Liberals waved it away as a non-issue, which is… rich. The blackmail of a sitting MP is… less… important than Facebook ads?
Finally, after months of pressure, the PM did perhaps the most bureaucratic thing possible and tapped David Johnson to investigate on whether the investigation was necessary. After months of investigating the investigation of the investigation into the investigation of Beijing blackmailing an MP, Johnson released a report in May that said, in part:
I carefully considered whether an inquiry under the Inquiries Act could help enhance public trust in our electoral process, over and above the work I have done. When I was first appointed, my preliminary view was that I was very likely to recommend a Public Inquiry. But my conclusion is that, in light of the material and information that would lie at the heart of any inquiry, it could not be done in public. Rather, a “public inquiry” would necessarily be done in private and largely replicate the process I have undergone, and not advance the goals of transparency or trust any further than I have taken them and raise expectations that will ultimately be disappointed.
Which was… Unsatisfying. To say the least. More, because Trudeau had the plenary authority to Johnston’s appointment and because he is a close friend of the Trudeau family, questions arose around the appearance of impropriety in Trudeau’s close friend and ski-buddy coming to the exact conclusion Trudeau’s government would have wished. Who would have thought?
After a month of criticism, Johnston resigned. There will almost certainly be an inquiry into Beijing’s interference, it ought to be public, but Johnston was right in that realistically, there’s going to be classified material in the mix. Trudeau would have been better off had he taken a hundred year old lesson from Hewart. And he would be better off in the future if he could refrain from appointing family members to high powered appointments. But a fish has to swim, a bird has to fly, Trudeau averages a major ethics scandal every other year, and was due.
An afterthought…
One addendum, before I post… I’m getting very annoyed at Liberals getting very annoyed at this outcome. I have no sympathy, and their deflections are lame.
“There are wildfires! CANADA IS BURNING!”
Walk. And. Chew. Gum. The reality is that wildfires are generally let to burn as a conservation measure because if you fight fires deadfall piles up and the next fire is worse. The reality is that Trudeau doesn’t have much to do with wildfires, and you would be hard pressed to explain to me what his government is doing on the portfolio. In fact, he isn’t doing much more than applying makeup and doing speaking sessions on the fires, with a side hustle of climate change grandstanding. I’m sorry that your corruption scandals are getting in the way of your marshmallow roasting.
“It’s so sad what those icky conservatives did to David Johnston, and the NDP are helping!”
Cry me a waterbomber. You should have picked someone better. You should have declared the inquiry months ago. You should stop marrying your cousins. The fact that the NDP grew a spine on this issue after actively carrying your water for years ought to provoke some thought on who is really at fault here.
Just saying.