Legal Research

What the Judge Actually Said

By Simon Fodden

The front page of today’s Globe and Mail sports a big photo of Ontario MPP Lisa MacLeod attached to the article “Can a busy female politician give reliable evidence? A judge says no” by Jane Taber. The lead paragraph runs as follows:

Lisa MacLeod is a young female politician who commutes to her job at Queen’s Park from Ottawa and leaves her husband, Joe, and four-year-old daughter, Victoria, at home. Mr. Justice Douglas Cunningham of Ontario Superior Court said this is a big distraction for the 34-year-old woman and as a result he felt he could not accept her evidence as corroboration of the Crown’s key witness in the recent high-profile, influence-peddling trial of Ottawa Mayor Larry O’Brien.

Ms. MacLeod is quoted as saying she “didn’t know truth had a gender.”

Before castigating Justice Cunningham, even in your mind, you should read the judgment, now available online [PDF], thanks to CBC.

First off, the judge said nothing at all like what the headline writer has him saying. Truth, it seems, may have no gender but it also can be hard to find in 72 point type. Then, MacLeod’s testimony for the Crown, as reported starting on page fourteen of the judgment, was vague, as these excerpts suggest:

During the course of their conversation Ms. MacLeod stated that, in the context of what Mr. Kilrea might do if he were not a candidate, Mr. O’Brien said, “somebody was talking to Terry about an appointment.” It wasn’t clear who that was.

. . .

After another question, she responded, “My best recollection is we’re talking to Terry about an appointment” which she believed was to the National Parole Board.

. . .
In the paragraph that follows these the judge deals with Ms MacLeod’s responses to cross-examination by the defence, which show that her recollection of events was unclear and only in general terms. The judge characterizes it fairly, in my view, as “imprecise.” And it is this imprecision that determined him to reject her testimony as corroborative of the assertion that an offer of a job to Mr. Kilrea was still outstanding at the critical time.

The mention of her job and children came initially during trial, as the defence attempted to undermine her credibility in cross examination. Justice Cunningham mentions it immediately after recounting the second quoted passage above, by way of explaining her poor recollection, something that might have had other explanations, one imagines. The passage in question reads as follows:

During cross-examination, the defence was able to demonstrate that there were a number of rather significant things going on in her life when she gave her statement to the police in early May 2007. She was commuting regularly to Toronto for her work, leaving her husband and child in Ottawa. As well, in March 2007, her father was diagnosed with cancer.

Nowhere in the Globe piece was the judge’s reference to her father’s illness mentioned.

Was this the most felicitous summary of reasons for MacLeod’s uncertainty? Perhaps not. Does it suggest, when read in the context of the whole judgment, that Justice Cunningham holds the view that truth has a gender, or, indeed, that this was about truth at all? Not to me. But read the judgment and decide for yourself, if you’re at all tempted to file away in your head the Globe article’s apperçus about this judge or the justice system.

[As an aside, let me say once again that there's no excuse for the Superior Court's failure to publish judgments online immediately it makes it available to the news media. In this case if it hadn't been for the efforts of the CBC, we'd have no means of deciding for ourselves whether Taber's story was accurate or not; and by the time the judgment made it to CanLII and then to us, the matter would have been cold and Taber's impression the only one likely remaining.]

Full post as published by Slaw.ca on August 11, 2009 (boomark / email).