Author Topic: Reasonable Doubt: Do secrets protect or cause more damage?  (Read 1512 times)

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Offline mayya

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Reasonable Doubt: Do secrets protect or cause more damage?
« on: October 04, 2014, 18:46:47 PM »
Reasonable Doubt: Do secrets protect or cause more damage?


by LAUREL DIETZ on OCT 3, 2014 at 11:45 AM
 

Laurel Dietz is one of the writers of Reasonable Doubt.

IN THE AGE of information, Julian Assange and WikiLeaks, freedom of information acts, secrets still play a large part of government policy around the world. As people’s hunger for information grows, governments are in the hot seat as embarrassing information comes out.


When Julian Assange disclosed American war logs and diplomatic cables, there was the fear that American informants in compromising positions would be harmed. To this day, Assange claims that no one was harmed as a result of the disclosure of the information. The Assange model of transparency is highly controversial at best, but perhaps we can learn something from it.

Julian Assange believes that transparency fights corruption and wrong doing on the part of big corporations and governments. The information he has leaked through WikiLeaks certainly seems to have given us the information we need to make informed decisions about our leaders.

Informants and tipsters play an important role, not only in developing government foreign policy, but also in everyone’s day-to-day life in reporting information relating to crimes or—my new favourite—in child protection cases.

In criminal law, there are specific qualifications a confidential informant must meet to have their identity kept secret. Later at trial, defence counsel always scrutinizes the information from these informers. If the information is not compelling (highly detailed and composed of information that could not be made up by a passerby on the street), from a credible source (someone that does not have a history of lying or serious motive to lie), or corroborated by police, then defence counsel will push the court not to afford it much weight.
In child protection, the rule of thumb is to keep all informers’ identities secret. The source of information is never disclosed to parents.

Imagine this scenario: you’re at home waiting for your children to come home from school. There is a knock at the door and it’s a child protection worker. The child protection worker informs you that your kids have been picked up at school and are being moved to a foster home. He hands you some papers and leaves. You look at the papers and read about why your kids have been removed from your care. You see a lot of information from “sources” or “callers” reporting things that you do not remember happening or could never possibly have happened. You have no idea who reported these things to the ministry. When you go to your lawyer, outraged at all this false information, she tells you that there is no way you can find out who made those reports. Then you start questioning yourself (Did I do something wrong? How could anyone think I hit my kids?) and trying to figure out how this information could have come to be reported.

Why is it important to know the identity of the sources of information? Knowing who said what gives you the opportunity to challenge the information. In the Oscar Pistorius case, his neighbours, 177 yards away, claimed to hear Reeva Steenkamp screaming prior to her being shot. At trial, Pistorius’s defence challenged these witnesses by leading expert evidence by an engineer and acoustics specialist. The expert gave evidence that it was extremely unlikely that the neighbours could have heard a scream at that distance, let alone interpret the sound credibly.

Knowing where the information comes from means that you can examine a witness on their perceptions of an event as well as their motivation for a report (malicious or not). These factors are critical to determining how reliable the information is. When presented with information that is patently false and without knowing the source, it’s almost impossible to respond to it other than by denying it and finding other witnesses to support you. Upon denying the information, you will almost certainly be told, “Of course you’re denying it, that’s what guilty people do. You’ve probably also convinced your friends and family to lie for you too.”

The Ministry of Children and Family Development keeps their sources secret to protect them and to encourage people to report child protection concerns. Sometimes the sources of child protection concerns are the children themselves. Because it is so hard to know what goes on behind closed doors and children are so vulnerable, we can all agree that it’s critical to foster a culture where people report child protection issues to the proper authorities.

On the other hand, the secrecy of sources can become a weapon. In ugly disputes and divorces, people can be a little too quick to use their anonymity as a weapon. Secrecy also means there is little accountability for the ministry to ensure that they are only using credible sources when they intervene in families. Less accountability means sloppy investigation work by child protection workers and children in care that should not be there pending long awaited court dates.

Keep in mind, the difference between criminal cases and child protection cases is that when an intervention occurs it affects children and families immediately and there is little effective recourse to the justice system (in criminal cases, at least, there is the opportunity for a bail hearing). By the time the court has the case before it, the children can have been in care for months. The court simply decides if the children stay in care or if they return home.

It is well accepted by all involved in child protection work that putting children in foster care is extremely harmful and is supposed to be the last possible recourse used by child protection workers.

Would making the child protection process more transparent endanger sources or help protect children better? The Julian Assange model of transparency certainly suggests that secrets serve to protect the government more than the people they serve. 

Laurel Dietz practices family law and criminal defence withDogwood Law Corporation in Victoria, B.C. Reasonable Doubt appears on Straight.com on Fridays. She can be followed on Twitter at twitter.com/UnbundledLawyer. You can send your questions for the column to its writers [email protected] 


A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer.


https://www.straight.com/news/742826/reasonable-doubt-do-secrets-protect-or-cause-more-damage