Let's Keep Our Eye On The Ball...

...David Chen!

Father Raymond J. de Souza: Chen victory a defeat for judicial bureaucracy

In the decades since the Donald Marshall case forced upon Canadians the realization that the criminal justice system could make terrible mistakes, the news of wrongful convictions has become rather more common. The latest news from British Columbia, that Ivan Henry was acquitted after spending 26 years in prison, is regrettably another case on a long list. Mr. Henry was not a model citizen before his arrest, but it still beggars belief that his forcible appearance in a police line-up, restrained by two officers, was not considered an obvious tainting of the process.

The police and crown prosecutors do not set out to throw innocent people in jail. Those who have even a passing familiarity with the system appreciate the good work our police and crowns do under difficult circumstances. A grateful citizenry is inclined to give the police and prosecutors the benefit of the doubt, yet the experience of recent years suggests that more careful scrutiny is in order.

The police and prosecutors comprise our criminal justice bureaucracy, and are not immune from the same temptations that all bureaucracies face – whether public sector, private sector, or even the world of churches, charities and non-profits. We know from many cases that the police and prosecutors can have institutional biases, be inclined to disregard or suppress evidence which challenges entrenched opinions, defend obtuse rules over common sense, engage in turf battles, cover up failings and resist attempts at reform.

The shameful conduct of the Vancouver RCMP in the death of Robert Dziekański and the subsequent falsehoods peddled to the incurious prosecutors were an example of the system at its worst, requiring as it did a judicial inquiry to tell the truth. Another judicial inquiry was required to sort out the horrific injustice of innocent Ontario parents – over a period of twenty years! – being falsely convicted of sexual assaulting and murdering their own children. It’s been two years since the release of that report, and it seems to have been forgotten. What should have shaken the criminal justice system to its foundations passed instead with no great consequences for the police and prosecutors at fault. And just weeks ago a judge found that police who illegally vetted potential jury lists – revealed by National Post reporting – really had done no harm.

When abuses of power are found in the criminal justice system, the response is often the classic bureaucratic one: Everything is in good order and whatever problems were exposed were isolated incidents of no great consequence.

Hence the significance of the David Chen case. Friday’s acquittal on all counts by a Toronto judge saved the system from becoming an international laughingstock. The ridicule of recent weeks heaped upon the police and the bewilderingly out-of-touch prosecutors had been rightly deserved. The interventions of the crown prosecutor, Eugene McDermott were utterly fantastical, as if David Chen were a vigilante spraying gunfire in the streets rather than a hardworking grocer who simply held a rebellious miscreant for five minutes until police arrived.


Why then was David Chen tried at all, let alone with the inflammatory rhetoric of the prosecution? Why would the prosecutors stoop so low as to cut a deal with a lifetime shoplifter, Anthony Bennett, to procure the testimony of a serial liar against a by-all-accounts honest immigrant entrepreneur? This was driven by an apparent bureaucratic instinct for self-defence, rather than any concern for Mr. Chen’s right to defend himself and his property.


The Chen case showed up the ineffectiveness of the police regarding shoplifting, as Mr. Bennett has been robbing Chinatown merchants for years. The police have their turf, and even when unable to keep it secure, they want no competition from citizen’s arrests. The prosecutors were happy to go along with this, likely thinking that a Chinese grocer was no match for their almost limitless power. So they did to Mr. Chen what bureaucracies often do, bring down the full weight of their power on an individual, counting on him to roll over and concede rather than fight back. Hence the ludicrous kidnapping charge they originally filed, before public outrage forced them to back down.


Mr. Chen decided to fight. Facing prosecutorial overkill, he declined to plea it out and go away quietly. A city and a country fed up with bureaucracies grinding up citizens rallied to Mr. Chen’s side.
Mr. Chen has been rightfully acquitted. The lesson though should remain – a badge and a gown do not prevent bureaucratic foolishness and abuse of power.


National Post