Uh… don’t pick up that phone

Here’s the problem with justice. It must not only be done, but also be seen to be done. Whenever a judicial process is not open, transparent and accountable, citizens – in the words of the 1989 Nova Scotia royal commission into the wrongful conviction of Donald Marshall, Jr. – will begin to "question the fairness and independence" of the entire justice system.

Once they do that, all bets are off.

Which is why Justice Minister Murray Scott’s private telephone call to the province’s director of public prosecutions last month to express his concerns about a judge ordering a fellow cabinet minister to testify in a court case was wrong – and, more important, dangerous.

The basic facts of the case do not appear to be in question. In mid-October, Youth Court Judge Pam Williams ordered Community Services Minister Judy Streatch to appear in her court Nov. 20 for a case conference to discuss what to do with a 16-year-old girl who’d pleaded guilty to 32 criminal charges.

The girl’s lawyer said she needed intense daily psychiatric care on a long-term basis, and that it wasn’t available. The Crown attorney, Gary Holt, one of the most experienced youth prosecutors in the province, agreed. "We’ve known for a long time in this province that there is a lack of (psychiatric and psychological) services for youth," he told reporters after the hearing.

So the judge, using a section of the Youth Criminal Justice Act, decided that ordering Streatch, the girl’s legal guardian, to appear at the hearing "is in the best interest of (the accused) in trying to assist in the sentencing process and, in my view, likely necessary."

A day later, Scott called Martin Herschorn, his supposedly independent director of public prosecutions, to complain about the judge’s decision and Holt’s support of it.

Three days later, Holt was back in court, this time arguing against the judge’s order.

Scott and the prosecution service have denied any connection between his call and the prosecutor’s change of heart. Instead, they claim Herschorn’s deputy, Adrian Reid, decided independently of his bosses to talk to Holt.

Even if we accept that version of events – and I do – that doesn’t make what Scott did OK.

Let’s remember why the Marshall inquiry report so passionately argued in support of "the unwavering and visible application of the principles of absolute fairness and independence" of the prosecution service.

They concluded that every level of the justice system failed Marshall, a young Native who spent 11 years in prison for a murder he didn’t commit. Nova Scotia, the report said, had a "two-tier system of justice" in which who you were mattered more than what you did.

To highlight that sobering truth, the judges examined two other cases: one in which the Attorney General’s office very clearly interfered in the investigation of a prominent Tory cabinet minister, who’d cut a sweetheart deal with his bankers, to try and prevent him from being charged with accepting an illegal benefit; and another in which the department tried to short-circuit a police investigation into a government MLA’s phony expense accounts and then, when that didn’t work, engineered a plea deal to keep him out of jail.

"These are indications of serious weaknesses in the justice system," the judges dryly noted. "They are all the more serious because they’re not simply overt interference. They exhibit a deep-rooted and unwritten code that status is important, and that one is not blind to influence in enforcing the law. Such an attitude makes the ideal of justice for all meaningless, and renders the goal of complete public confidence in the system of administration of justice impossible."

Which is why Nova Scotia’s justice system was overhauled in the ’90s to make it more open, transparent and accountable.

If Murray Scott doesn’t think a judge’s decision is correct or disagrees with the point of view of a prosecutor, he has options.

He can dispatch one of his department full of lawyers to open court to file a motion to quash the judge’s order, arguing – as he has – that the minister has nothing of value to offer.

But he shouldn’t pick up the phone and privately call his director of public prosecutions to make that argument.

We’ve been down that road before. And we know where it leads.

Stephen Kimber is the Maclean Hunter Professor of Journalism at the University of King’s College. He was the general editor of the Marshall Inquiry’s final report.