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Dissecting Reyat's Plea Bargain
By EDWARD L. GREENSPAN
Edward L. Greenspan, Q.C. is senior partner, Greenspan, White.
National Post, Feb. 14, 2003
"Possibly, Reyat said to himself, 'The Crown, on the eve of trial, has offered a five-year sentence on top of the more than 15 years I've been in jail. This sentence may have me out of jail before their three-year trial is over. Even though I'm not guilty, there is a risk I could lose. I'll take the deal.' Obviously, by the Crown initiating the offer, it is suggesting that the charges against Reyat may not be supported by the facts or the evidence they have amassed. The Crown may even have lost confidence that it could prove Reyat guilty of anything. Everyone knows instinctively that plea negotiations are in the public interest. Without them, costs would skyrocket and the court system would become bogged down. But Reyat proves that there is no legal procedure that is so little understood as the plea negotiating process, nor is there one surrounded by so much controversy."
"It is interesting that in the agreed statement of facts, there are only five short paragraphs: three confirming what Reyat did not do and did not know; and two paragraphs admitting facts already proven at his first trial in 1991. The admitted facts demonstrate it cannot be proved: 1) that Reyat made an explosive device; 2) that he placed any explosive device on an airplane; 3) that he knew who did so; or 4) that at any time did he intend by his actions to cause the death to any person or believe that such consequences were likely to occur. The Crown conceded that unbeknownst to Reyat, the items he acquired were used by other persons to help make an explosive device that destroyed Air-India Flight 182."
"Fortunately, in Canada, trials are about proving cases beyond a reasonable doubt on facts presented in a court of law, not rumour nor 'belief' in someone's guilt. Guilt means legal guilt. Courts are concerned with legal, not moral guilt. The Crown must have conceded that Reyat had no idea that a plane would be blown up or that people would be killed. On the agreed facts, Reyat had no idea of the horrible terrorist act that would occur. The public may not like those facts, but those are the facts. And in criminal law, people are sentenced on the proven facts, not what the Crown wishes it could prove."
"On the admitted facts, the total sentence is probably too high. In my view, the source of the public outcry is the Crown's failure to deal honestly with the public. Once the Crown has concluded that it can't prove Reyat is a terrorist, it can't insist that he is being punished as if he were one. The consequence of not being able to prove its case is that the Crown is not entitled to seek or justify a sentence as if it had. The Crown should simply say, 'We can't prove it. Five years is appropriate.' But instead, it argued that 'his actual sentence amounts to 25 years in prison. It's a matter of doing the appropriate math.' The Crown wants to give its own loss a spin of victory and so it engages in a false numbers game."
"On Jun. 10, 1991, Mr. Justice Paris stated, in sentencing Reyat, 'Taking into account the circumstances including time spent in custody, I sentence you to 10 years.' That time was 80 months. But the Crown needs this 80 months to get to the 25 years, a number it thinks will appease the public. And so, they double dip, when Judge Paris already took it into account 12 years ago. The Crown is embarrassed by the fact that it can't prove its case and it is its embarrassment that is upsetting the public. Instead of engaging in 'Enron accounting,' the Crown should inform the public that this man is not getting away with murder, because he didn't commit murder. End of story."