Law and Privilege – Money can impact justice!

EDITORIAL

I was reminded this week that money affords people a lot more access in a court of law and as a result justice is not always equally distributed; in particular when it comes to civil courts. However, even in terms of criminal prosecution, many people recognize there are benefits to having money and position.

We have always maintained that in most circumstances the criminal justice system does work. It is less dependent on financial power but it always has it's weaknesses because of the privilege of money affords. It is one reason the legal aid system should be revamped with anyone facing criminal allegations being afforded full legal aid.

The benefits include being able to hire the best of the best as legal counsel who can appear in court and twist the legal arguments to suit their cause. On Thursday morning, a judge found in favor of Blake Ducharme, an American-Canadian millionaire who we wrote about last year after he had been arrested for having an unregistered firearm in his Crystal Harbour house. Despite Ducharme never being ultimately charged there were significant questions that came out of the circumstances.

Ducharme has the advantage of hiring the best that money can buy and on Thursday we were reminded of how that will ultimately have an impact on the legal process. They were successfully able to claim that Sandy Hill had ignored a court order about the removal of the story that was then the subject of an injunction. Not on the basis that it could be read by anyone but more on a technically. The story had been password-protected so that no one could access it. Despite that, the judge found that it was enough to run afoul of the order because the title was still visible.

Seeking to keep the story in a suspended format until the case is actually decided was the sole reason it was password protected. If we are successful in the case it will be re-uploaded for all to see.

What then ensued by Ogier legal consultant James Clifford was him painting a picture that there was willful non-compliance. For example, he claims that the original article was down “for months” and then put back up. This is absolutely not correct at all. In fact, whilst in court, we were able to view the history of the article and could show it has bene last “edited” on August 23, 2019.

But apparently having a sworn affidavit from his legal secretary was all that was required as evidence to prove his point. In fact, CMR was in the middle of re-doing our entire website in August 2019 – a fact that is easily confirmed on all our social media platforms. So the entire website was down for a few days before stories could be re-loaded.

He further asserted that despite being locked we were clearly giving the password to others as the number of “reads” was increasing. The irony of this is while money can buy you the best lawyers it obviously doesn't afford them much in the common sense department with absolutely no understanding of technology at all. Numbers are increased every time he or his staff clicks on the link in their obsession to track the numbers – simple! No one was given the password and no one read the article after the court order was agreed in August. He then twisted my initial non-compliance into an “ongoing non-compliance” using previous statements to try and prove a state of mind. But this is what lawyers do best …. they are not know for seeking out or speaking the truth.

He also had additional orders before the court seeking to have his original injunction extended to include several other opinion pieces that were written about Ducharme claiming some seven months later that they are defamatory. The judge denied that request.

Nonetheless, a victory for them is a victory for them. Let's give the devil his due.

He won a cost order by way of a writ of sequestration – which means he will now seek costs by confiscating anything that he can. It's more a mind game tactic than anything else leading up to the trial. They put the most expensive “consultant” on the job so that their costs can be super inflated. He then takes three hours to argue basic points because he claims it is so important to go through every minute detail to make out his client's position. The judge did appear to be impatient and encouraged him to get to the point and told him certain points of detailed discussion were not necessary.

They inundate you with so many emails and messages on a constant basis hoping to wear your reserve down. The process allows them to do so and legal aid is woefully lacking in certain cases including civil defamation.

The broader takeaway here is money does indeed impact many aspects of the judicial system. Those of us who do not have the financial means are at a distinct disadvantage. It doesn't matter if the case is against millionaires like Ducharme or the Cayman Islands Government – who has unlimited coffers.

Perfect examples of the latter include the fight for beach access and prescriptive rights of way or for a fair and balanced referendum law. The Concerned Citizen's Group was told they are equipped to go up against government QCs and could prepare their only legal arguments without the benefit of a lawyer and so legal aid would not be approved. Without a protective cost order, CPR Group would not have been able to mount the important legal challenge against an unfair flawed referendum law.

At the end of the day, a win is a win and Durcharme won this round. Despite that, important questions remain about the gun transaction in particular – ones which we will never get answered no doubt. The irony is the same questions asked about whether or not there was some privilege involved remain extremely relevant.

We can clearly see that in law money affords you privileges too and the people should never forget that.