WHATEVER DID HAPPEN behind the scenes that led to Rahim Jaffer receiving a slight tap on the wrist may, it seems, never be known.

In Ontario, at least, our criminal justice system has effectively overturned an 86-year-old legal rule that led to the oft-repeated phrase, “Not only must justice be done; it must also be seen to be done.”

The statement originated in< I Sussex Justices, Ex parte McCarthy ([1924] 1 KB 256, [1923] All ER 233), a leading English criminal case that became famous for its precedence in establishing the principle that the mere appearance of bias is sufficient to overturn a judicial decision.

In 1923, McCarthy, a motorcyclist, was involved in a road accident which resulted in his prosecution before a Magistrates Court for dangerous driving. Unknown to him and his lawyers, the judges’ clerk was a member of the firm of solicitors acting in a civil claim against him arising out of the accident that led to the prosecution. The clerk had retired with the judges, who returned to convict McCarthy.

On learning of the clerk’s action, McCarthy applied to have the conviction quashed, but the judges swore affidavits stating that they had reached their decision to convict the defendant without consulting their Clerk.

The appeal was heard by Lord Chief Justice Hewart. In his landmark judgement, he said, in part:

“It is said, and, no doubt, truly, that when that gentleman retired in the usual way with the justices, taking with him the notes of the evidence in case the justices might desire to consult him, the justices came to a conclusion without consulting him, and that he scrupulously abstained from referring to the case in any way. But while that is so, a long line of cases shows that 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.”

In the wake of Tuesday’s disposition of Mr. Jaffer’s alleged offences, justice advocates and opposition politicians are demanding an explanation of how the former Conservative MP got away with a plea to careless driving, a $500 fine and a charitable donation instead of convictions for drunk-driving, speeding and cocaine possession.

Crown attorney Marie Balogh said only that the initial charges were withdrawn for “significant legal reasons” and there was no reasonable prospect of conviction, but refused to elaborate outside the courtroom.

In a mastery of understatement, Justice Doug Maund told Mr. Jaffer, “I’m sure you can recognize a break when you see one.”

The “break,” and the Crown’s silence as to what had happened has left both the federal Conservatives and Ontario’s Liberals vulnerable to allegations that their various law-andorder programs don’t not extend to fellow politicians. NDP justice critic Joe Comartin, lawyer, observed astutely that “the real problem here, the real injustice on the surface is why would they have not proceeded with a trial. A one-line explanation from the prosecutor that she felt there wasn’t sufficient evidence to get a conviction is simply not sufficient in these circumstances, especially with regard to the fact it’s admitted he failed the breathalyzer.”

The Toronto Star quotes police sources as saying the roots of the withdrawal of charges lay “in the early hours of Sept. 11 after the former politician was pulled over for driving 93 km/h in a 50 km/h zone in Palgrave.”

The rumour is that a rookie Ontario Provincial Police officer didn’t follow proper procedures during a strip search, causing the Crown to conclude that it would face a Charter challenge. The sources said that while the OPP had opposed Mr. Jaffer being charged only with careless driving, the Crown had taken a steadfast position.

And all Brendan Crawley, spokesman for the Ministry of the Attorney General, would say was that the case had been “carefully reviewed” and there were “issues related to the evidence.”

Thus, at the end of the day, all the public knows is that Mr. Jaffer was clocked doing 43 km/h above the posted speed limit, and that when he was pulled over was found to have been drinking and in possession of cocaine.

That by itself is enough for the public to conclude that his behaviour involved a lot more than careless driving and that what happened Tuesday was a classic example of our justice system failing to deal appropriately with the twin scourges of drunk driving and narcotics.

Had the matter proceeded to trial on the original charges, Justice Maund would have either acquitted Mr. Jaffer on constitutional grounds or convicted him after deciding the incriminating evidence should be admitted.

In either case, the public would have known what transpired and his decision would have been open to appeal.

In the circumstances, nothing short of a judicial inquiry should be held so the public will at least be able to reach a knowledgeable conclusion as to whether, in reality, justice was done.