Originally Published in the National Post: Thursday, March 08, 2007

KINGSTON – On the subject of Lord Black of Crossharbour, I am not neutral. Like many Canadians who love newspapers, and have better ones to read because of him, my hope that he is acquitted in Chicago arises in part from a debt of gratitude, one which those of us who write for his quotidian progeny feel all the more intensely. Yet this past week’s wall-to-wall coverage of the dismembering of his companies and the attempt to send him to prison for the rest of his life have highlighted another reason why I hope for his acquittal – as a rebuke to the misuse of state power in the criminal justice system.

Let us even stipulate that Lord Black is what he manifestly denies, namely, guilty of all charges. Even then, would it justify the enormous pressure brought to bear upon his finances and ability to defend himself before the trial even begins; the highest bail setting in the history of the American republic, the attempt to deny him use of his assets for his defence, the prospect of a prison sentence so long as to be unattainable in Canada for even the most heinous crimes? David Radler, Black’s former partner now turned state’s witness, took a plea bargain, which even then requires Radler to spend more than two years in jail. All of this, not because Black’s companies went bankrupt in an orgy of fraud a la Enron, with shareholders and pensioners left penniless, but because of a sluggish share price allegedly caused by over-generous management fees paid to Black and Radler. This criminalization of a corporate governance dispute has about it the whiff of the overbearing state.
My own views on the criminal justice system were formed in an ambience about as distant from the grandiose lifestyle of Lord Black as possible. As an undergraduate here in Kingston, I visited the prisons for several years in the early 1990s, and now as a priest I have, on occasion, returned to our several penitentiaries to visit the inmates and administer the sacraments.
Again, even stipulating the guilt of all those incarcerated, it does not take long to discover that something else unites most of the men behind bars – an inability to resist the crushing pressure the police and prosecutors can bring to bear upon a man supposedly presumed innocent. There are very few men in prison who were able to afford a good legal defence, or had access to the intellectual, social and spiritual resources that have allowed Lord Black to face his accusers so defiantly.
I am not one who sees only a quasi-omnipotent state crushing the innocent, though we have had in Canada too many spectacular cases of just that, but my experiences have left me skeptical of the tough law-and-order agenda of more criminal offences, longer penalties and mandatory minimums. I have very little confidence that the same vast bureaucratic apparatus that manages our health care, our post office or our roads somehow becomes more competent and fair when it comes to criminal justice. It is not necessary to conclude that the police and prosecutors are anything but high-minded, but they do have enormous power, and enormous power wielded against those who have little creates an environment hospitable to abuses.
“Our sentences are too long, our sentences are too severe, our sentences are too harsh,” said Justice Anthony Kennedy recently when testifying before the Senate in Washington. It’s not a radical position; he’s the swing vote on the American Supreme Court. Arguing against mandatory minimums and disproportionate sentences, Justice Kennedy drew attention to what all too often goes on south of the border — defendants are faced with the prospect of a life in prison without parole for an array of lesser crimes, so they are almost forced into folding before the state. The 95 years faced by Lord Black would certainly be a case in point.
The reason it takes a wealthy and powerful man to draw our attention to the potential abuses of the criminal justice system is that all other defendants not so bountifully endowed simply shuffle through the system unnoticed. Lord Black does not pass unnoticed. The attention given to his trial will provide a public lesson in how the criminal justice system operates, for good and for ill.
For his sake, and the sake of many others who face the prosecutorial branch of the state much less well defended, I hope the jury returns, some months from now, an acquittal.
© National Post 2007