There are profound differences in the American and Canadian approaches to freedom of expression. In the U.S. a man can stand on a street corner preaching genocide.[13] The Canadian approach is more nuanced and sensitive.[14] Although a wide berth is given to unpopular and even untruthful ideas, it is recognized that in order to protect vulnerable communities, there is a point where a democracy can properly limit freedom of speech.
I was astounded to find that the media was free to publish or broadcast the content of the pre-trial hearings in the Black trial. There were no boundaries or restrictions. In America, a newspaper can print the detailed and damning confession of a defendant that later is excluded because the arrested party was denied his right to counsel. By contrast, in a Canadian courtroom, the bail hearing, the preliminary hearing, and all of the pre-trial motions are off limits to the media for reporting until the trial has concluded (or in some cases until the jury is sequestered). There can be criminal sanctions if an order banning publication is deliberately flouted.
The Prosecution
March 20
In his opening statement, prosecutor Jeffrey Cramer tells jurors, “Bank robbers wear masks and use guns. Burglars wear dark clothing and use a crowbar. These four … dressed in ties and wore a suit.”
“He was not stealing from the company,” defence lawyer Ed Genson counters. “The company was stolen from him.”
The Cuddly Curmudgeon
I applaud the subdued dress look (grey on grey) that Conrad Black has selected for his courtroom wardrobe. His extravagant lifestyle is featured in the prosecution’s case, so he doesn’t need to become a witness for his adversary by dressing flamboyantly. It would be most unhelpful, for example, for him to arrive at court carrying one of Martha Stewart’s Hermès handbags. I am reminded of the lawyer in my office who was defending a Penthouse model on a relatively minor drug charge. He took special efforts to warn her about dressing for the solemn occasion of a court proceeding. He was mortified to find her at the courthouse attired in a tight-fitting blouse, short skirt, and black fishnet stockings.
I feel as if I have jumped into a swimming pool only to find that the lifeguard has neglected to inform me that it isn’t heated. I watched in baffled dismay as the prosecutor, Jeffrey Cramer, delivered his opening address today with the same fiery rhetoric and flourish that I expect Abraham Lincoln employed for his stirring Gettysburg Address. Cramer’s opening was about as distant from the dispassionate and flat opening that a Canadian prosecutor would routinely give as Ontario, Canada, is from Ontario, California. In short order, a Canadian jury would be provided by the prosecutor with the anticipated menu for the trial without the enticing details for the recipe of each course. Regardless of whether the meal consisted of oysters or foie gras, the prosecutor’s voice would never rise with crackling excitement. Unappetizing introductions such as “I anticipate the evidence will be” or “I expect the witness will testify that” would be sprinkled throughout the curt summary of the case for the Crown.
I chatted with a journalist covering the trial for the Sydney Morning Herald and found that we shared a common view that Cramer’s opening address was certainly different than anything we had experienced in our respective countries. As he wagged his finger at Conrad Black and his co-defendants, Cramer railed about their looting of the Hollinger International shareholders of $60 million. With faint praise, he referred to the four defendants in the courtroom as some of the most sophisticated men the jury would ever see. Always be wary of the prosecutor who brandishes compliments. Cramer’s point to the jury was plain. The ruse of siphoning extravagant sums of money from the shareholders through various non-competition agreements would have been obvious to these astute businessmen. “It’s simple, it’s simple,” Cramer emphasized as he laid out the nefarious scheme of the four men. Cramer was a disciple of the “KISS principle” that all good trial lawyers understand: “Keep It Simple, Stupid.”
The prosecution appreciated that there was a gaping hole in its case. Every one of the contentious deals involving the non-compete payments to the defendants was profitable to the shareholders. This was not the financial undertow that resulted from the Enron debacle, where billions of dollars were plundered from the company as thousands of jobs and pensions of Enron employees vanished into thin air.
Jeffrey Cramer’s solution was to pull on the jurors’ heartstrings using a different approach. With a raised voice, he drew from the bank of wishful thinking. The two groups of victimized shareholders that he identified were elderly people who had bought Hollinger stock for their retirement and parents who had stocked their children’s college funds with Hollinger shares.
Cramer’s bag of trial tricks in his opening did not rely exclusively on emotional appeal. Plan B depended on frightening them.
“We all know what street crime looks like. A man knocks you down and takes your money. This is what a crime looks like in corporate law … Bank robbers use masks and carry guns. Burglars wear dark clothing and use a crowbar. These four [defendants] wore a suit and a tie.”
Now that it was settled for the jury that Conrad Black had robbed the Hollinger bank in sartorial splendour, it was Edward Genson’s opportunity to respond. He began by challenging the idea presented by the prosecution that none of the buyers of Hollinger International assets wanted a non-competition agreement with Black.
“I want you to remember CanWest,” Genson told the jury. In the colossal $3.2-billion deal between Hollinger International and CanWest, he explained, it was the purchaser who had asked for a non-competition agreement.
Eddie Greenspan listened apprehensively as his co-counsel continued his opening comments. As a thorough lawyer accustomed to meticulous preparation, Greenspan had repeatedly asked to see Genson’s script for the opening. Each of his requests had been rebuffed. Incredibly, he had no more idea of what precise words would be coming out of Genson’s mouth than did his adversaries seated at the prosecution table facing the jurors.
Greenspan’s worst fears were realized as Genson moved quickly on the offensive by stating that there was no theft from the company by Conrad Black. On the contrary, it was the company, Hollinger International, that had been stolen from him. It was a stinging rebuke to Cramer’s opening, but Greenspan worried that Genson had placed an unnecessary and impossible burden on the defence. In the spirit of Conrad Black as victim, the defence was on course to portray the individuals charged with the responsibility for corporate governance at Hollinger International as the true thieves in the night.
Genson touched on a theme in his opening that needed to be addressed directly. “You can’t allow the sparkle of wealth to alter the facts of the case,” he warned the jurors. A glare of wealth or even a blaring inferno might have been more apt descriptions of Conrad Black’s true economic health during the currency of the charges, but Genson’s point was sound. It was ironic that a defendant’s status among the super-rich had marked him as a displaced person before the jury. Whereas indigence might deprive a defendant of the resources to tussle in a courtroom on an even playing field, the trappings of wealth could translate to a badge of impoverished character.
The best of the four opening statements by the defence was reserved for the last. Ron Safer provided the jury with a stirring imitation of a closing address as he sandblasted the central government theory. The audit committee of Hollinger International, chaired by the former governor of Illinois, James Thompson, not only was aware of the non-competition agreements, but also, Safer noted, “approved them again and again and again.”
Safer’s opening sealed a unified front presented by all of the co-defendants. There were no early signs of finger-pointing or cracks in the defence. David Radler emerged as a dominant target. “Would you buy a used car from him?” Ron Safer asked. The implication was clear to the jury: a disreputable man like Radler, who tampers with the odometer and hides the rusty spots, can’t be trusted