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Nothing like the Truth

Even judges are excusing lies in our courtrooms, which undermines the entire legal process

While the rhetoric of "good versus evil" gets a lot of play these days, "truth-telling" has fallen off the virtues scorecard.

Lying, it seems, has acquired a moral status all its own. We accept it as a political necessity, a form of politeness, a social convenience, even an expression of sensitivity and kindness.

But while wilful deception has become a part of our day-to-day life, we still cling to the belief that one place remains a bastion of truth. Just as God is to be found in churches and money in banks, we expect truth to be found in the halls of justice.

After all, witnesses swear an oath to "tell the truth ... and nothing but the truth" and perjury is a crime. A couple of recent cases that sparked public notoriety were that of Jeffrey Archer, the former British MP and novelist currently appealing his four-year sentence for perjury and, of course, former U.S. president Bill Clinton, who came perilously close to being charged during the Monica shemozzle.

But those are the celebrity cases. What about all the rest?

Too often, I hear of people lying to police, judges and juries and I wonder why it is that almost all of them get off scot-free. It's due, in part, to our tendency to use other words to obfuscate the deed. "It is not a lie," exclaimed Alexander Haig, president Ronald Reagan's secretary of state, "it's a terminological inexactitude!"

Lies these days are usually disguised as false accusations, misperceptions or emotional misstatements and talked about in linguistically misleading terms for which the courts have developed an unhealthy tolerance.

Take, for example, the recent case in which a 17-year-old Hamilton woman claimed that, while walking through a park, she was attacked by a man who dragged her toward some trees and sexually assaulted her. Providing a description of her attacker, police searched the area for evidence and appealed for public assistance. Their hotline was swamped with tips before the teenager admitted she'd made up the story. The complainant's expression of remorse persuaded police to overlook her lying; so, she wasn't charged for giving a "false report".

A decade ago, a similar fabricated story, resulting in a police investigation costing $300,000 and the arrest of an innocent man, did prompt the Toronto police to lay charges of public mischief. But, when the case went to trial, the judge, fully aware of the blatant lies and their impact, acquitted the woman because he thought she might have been "suffering from some sort of stress disorder."

It seems that we've reached the point of viewing lying to be, if not a sickness, then, a natural trait. "Lying under oath," says Judge Roderic Duncan, of the Alameda County Superior Court, "is an accepted element of most trials". He describes an occasion when he reported "a slam-dunk case of perjury" to the local prosecutor, pointing out in a letter that "one of the parties admitted in my court that he had lied under oath." The district attorney shrugged his shoulders, never bothering to respond.

Lying under oath is just something everybody does -- even the police who whimsically call it "testilying". The celebrated trial of O. J. Simpson provided us with a couple of pristine examples of perjured police testimony by detectives Mark Fuhrman and Philip Vannatter who, in Judge Lance Ito's words, had demonstrated a "reckless disregard for the truth." We live in an era when even the most flagrant disregard brings little more than harsh words from judges.

Last April, Nancy Jean Strobel admitted that she had committed spiteful perjury in sworn statements both in Canada and in Hawaii. B.C. Supreme Court Justice Robert Edwards told her that she was flagrantly in contempt of court orders allowing her ex-husband to visit his children and that her behaviour warranted "a substantial jail sentence" -- but he let her off. Why? Because, in his mind, it was more important to keep an angry mother out of jail than to teach her, and her five-year-old daughter, the value of truth.

Cathy Fordham

Another exposed liar, Cathy Fordham (left) of Ottawa, has left a trail of an estimated 55 complaints with the police, seven reportedly involving grievous claims of sexual assault. One man, Jamie Nelson (right), spent more than three years in prison before her lies were uncovered and he was acquitted.

Jamie Nelson

When Fordham was convicted two years ago of public mischief and given a paltry six-month sentence to be served in the community, she said she just wanted to "put it all behind her." But she didn't. The meagre penalty had no effect, so this month she'll be sentenced again in an Ottawa court, this time for uttering death threats against another man she had falsely accused.

Perhaps now she'll get more than a slap on the wrist.

So what's the big deal if lying happens all of the time with little, if any consequence, to the liars?

I admit to my share of lies -- I'll say I'm busy to avoid a meeting or thank someone for a lovely gift when, really, I hate it. But I can distinguish the extremes of deception and separate the grey lies (there are no white ones) from the black lies. I find comfort in the belief that we live in a society where malicious lies are frowned upon.

But, when our courts tolerate even the blackest of lies, we risk losing not only any sense that their verdicts are based on truth, but also our faith in the moral principle of truth itself. If our courts show a disregard for veracity, then how is it possible for us to assume that anyone really cares about truth-telling?

If we can't trust our courts to uphold the principle of truth-telling, then who can we trust?

Ottawa criticized as condoning perjury
Appeals court raises questions about drug trial

The federal justice department has been severely criticized for shrugging off perjured testimony from a key witness at a drug trial which may have been given with government approval.

That Frank Makdesion, a paid police agent, lied about his extensive criminal record without so much as a peep from his FBI handler sitting in the Toronto courtroom "raises serious questions about state involvement in . . . perjury," the Ontario Court of Appeal said yesterday.

Makdesion's 1997 testimony helped send Belbir Ahluwalia of Toronto to prison for 7½ years for drug trafficking. Only after the sentencing did his lawyers learn they had been misled about Makdesion's past.

When they demanded to know why, federal prosecutors brushed off their questions, saying they hadn't known about Makdesion's long record and had no explanation for why the FBI hadn't been more forthcoming. Ottawa also refused to make Makdesion and his FBI handler, "Agent Carter," available for questioning.

"For reasons not shared with this court, the crown does not appear to have regarded itself as under any obligation to get to the bottom of this matter," said Mr. Justice David Doherty, writing for a unanimous court.

"The crown has obligations to the administration of justice that do not burden other litigants," he said. "Faced with its own witness's perjury . . . The crown owed both the appellant and the court a fuller explanation than it chose to provide."

New hearing ordered on entrapment issue

The federal government's conduct formed the basis of a "fresh evidence" application to the appeal court, which yesterday upheld Ahluwalia's convictions but ordered a new hearing on whether he had been a victim of entrapment.

At an earlier hearing, Ahluwalia claimed he sold two large bricks of cocaine to police only because Makdesion pointed a <gun> at him while they were driving around Detroit in March, 1991, and demanded that Ahluwalia arrange meetings for the purchase of drugs.

At trial, Mr. Justice Hugh O'Connell rejected the entrapment claim, in part because he found it hard to imagine Makdesion pulling a <gun> while being monitored by his handlers.

That might be less difficult to imagine now that it's been shown Makdesion perjured himself while his handler watched, Doherty suggested. He said the editing of Makdesion's record also raises concerns about abuse of process. Makdesion testified that his criminal record consisted of a conviction for possessing half a gram of cocaine, for which he was given probation. Makdesion had done jail time for other drug offences and assault with a dangerous weapon while employed by the FBI.

Convictions missing from his testimony matched those missing from criminal records provided at trial, Doherty noted.

"I should not be taken as suggesting, much less finding, that any police officer or FBI agent acted improperly," the judge said. "There may well be an 'innocent' explanation for how Makdesion came to give perjured evidence which matched the incomplete disclosure."

Ahluwalia's lawyers hope to get him released on bail. "There are still a lot of answers we don't have in this case," James Lockyer said.

Association in Defence of the Wrongly Convicted