Independent investigation needed in Just Desserts case: Race card played: Scathing ruling takes issue with ‘cultural insensitivity’
By Faisal Kutty – A few rotten apples can spoil the bushel. Nobody knows this better than police and court officials in Toronto as they try to deal with the negative publicity surrounding strip searches and other ill-treatment of the three accused men — Lawrence Augustus Brown, Gary George Francis and O’Neil Grant — in the infamous Just Desserts case.
A scathing 60-page summarized ruling on the case, released Tuesday by Mr. Justice Brian Trafford, puts the police and the justice system in an unenviable light. The selective use of leg irons, belly chains and handcuffs on the three suspects displayed “cultural insensitivity towards black people,” stated Judge Trafford. He also found that to this day Toronto police have “never comprehensively investigated allegations of abuse.” Activists, angry at the use of shackles, have brought up the spectre of the slave trade. They have pointed out that Paul Bernardo was never shackled in court. Was he less dangerous because he was white and clean-cut?
Race is once again an issue, as it was from the moment Georgina “ViVi” Leimonis was gunned down during a foiled robbery attempt at Just Desserts, a restaurant in the upscale Annex neighbourhood. When blacks were said to have committed the crime, accusations of racism were levelled at the police, the justice system, the media, and even the wider community. The situation was not helped when the arrest and charging of four black men (charges were later stayed against one of them) fuelled a national outrage against immigrants.
The arrests followed what was at the time one of the most exhaustive police manhunts in Toronto’s history. The media were all over the issue, and the Crown resorted to the seldom-used “preferred indictment” to push the matter to trial without a full preliminary hearing, or even fully reviewing the submissions of defence counsel.
It was only natural for blacks and other minorities to be concerned about the peculiarities of this case. Race was an issue, and so the defence played the race card from the very beginning. One of the lawyers — there have been dozens hired, fired and removed to date — likened the preferred indictment to “the modern-day equivalent of a lynching.” Moreover, in a letter written in 1995 to Ian Scott, then chief counsel for special investigations at the Crown Law Office, lawyers for the accused alleged that “this case has drawn a tremendous amount of publicity . . . not because of the nature of the crime itself, but because the defendants are all black, Ms. Leimonis is white and the incident occurred in an upper-middle-class restaurant frequented primarily by white people.”
Are these concerns valid? According to the 1995 Report of the Commission to Study Systemic Racism in the Ontario Criminal Justice System, 58% of the blacks and 36% of the whites surveyed in Toronto believed that judges do not treat blacks the same as whites. The report also found that 61% of the Crown attorneys thought that “discrimination exists, but only in a few areas and only with certain individuals.” Blacks, and to some extent native Canadians, according to the report, were more likely to be imprisoned at both the pre- and post-trial stages, not because they are inherently more criminal, but owing to the arbitrary exercise of discretion against them at each stage — the charge, arrest, detention, prosecution and sentencing.
Some critics liken the race card to a “Get out of jail free card” in Monopoly. Far from it. Claims of discrimination in the system must not be dismissed. On the same note, they should not enable criminals to get away on technicalities.
Though Judge Trafford was highly critical of the accused mens’ treatment, he reasoned that society would be better served by continuing the trial. The Leimonis family has waited long enough for closure, and the accused have languished in detention for more than four years. The accused at this stage are just that — accused. Moreover, ensuring fairness and due process does not take away from justice being served to the victim and family.
Actual and perceived unfairness must not be compensated for by absolving the guilty for mistreatment on account of race. A better idea would be to pursue an independent investigation of the treatment of the accused in this case and determine how many, if any, of the Commission’s numerous recommendations have been implemented. Among them were calls to allow landed immigrants to sit on juries after they’ve been in the country for three years, obliging lawyers and court employees to report racist conduct on the part of other lawyers, employees and judges, and having the Upper Canada Law Society set up an office to deal with complaints of racism.
Pointing fingers will not do. The focus should be on addressing the issue of racism — whether actual or perceived – head on.
Faisal Kutty is a Toronto lawyer and writer
Note: First Published Saturday, November 21, 1998 in The National Post
Byline: Faisal Kutty
Source: National Post
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