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| Norman Douglas |
When, as an assistant Crown attorney, I started my 50-year career in criminal law back in 1973, if a witness wouldn’t co-operate, then the case was often withdrawn.
Many cowardly abusers of women and children escaped justice.
It wasn’t until 1989, when I moved from Sault Ste. Marie, Ont., to Ottawa to take up the position of regional Crown attorney for Eastern Ontario, that the law of evidence experienced the sea change of DNA. I had this large grey box on my desk called a computer. Never used it. I moved to Toronto in 1992 to become the acting director of prosecutions for Ontario.
While I was struggling with cutting and pasting, dead men started talking.
Cold cases warmed up.
The rate of convictions rocketed. Serial predators were identified, and the hunters became the hunted.
And at last, innocent and wrongly convicted prisoners were set free.
Forensic pathologists and DNA scientists became the heroes of the courtroom for the families of victims and the wrongly charged.
Defence lawyers, in the early days, tried these arguments:
“OK, so the odds are a trillion to one that someone else committed this crime, but what if my client is that one?”
or
“The police might have planted this evidence or at least contaminated it as they bungled through their investigation.”
But it became all too clear that the soil for planting seeds of reasonable doubt in a field of DNA evidence was hardpan.
And there are other ways now for dead men to talk.
It used to be that the only way as a prosecutor I could introduce statements of a deceased person was through a “dying declaration.” This was a rare exception to the rule that hearsay evidence is inadmissible.
The judge would have to be satisfied that (a) the deceased was the declarant (b) the deceased made the statement on the immediate expectation of death and (c) the statement was about the cause of death and who caused it.
But in 2026, dead men are speaking loudly and clearly.
You wondered when I was going to get to Jeffrey Epstein, didn’t you?
I have no special connection to the case. But I do have a legally trained mind to try to understand the evidentiary implications of what he has left behind.
What baffles me is the volume.
And even my legally honed mind is boggled by the million (!) or more documents that the investigators discovered.
In a democratic country, when a person is charged with a criminal offence, certain safeguards apply automatically:
1) the presumption of innocence — the onus is on the prosecution to prove guilt.
2) the burden of proof — the case must be proven “beyond a reasonable doubt.”
3) the prosecution must reveal to the accused all the evidence it has — this is called “full disclosure.”
4) hearsay evidence is not allowed.
5) a jury’s decision on guilt must be unanimous. All 12 jurors must be convinced beyond a reasonable doubt.
2) the burden of proof — the case must be proven “beyond a reasonable doubt.”
3) the prosecution must reveal to the accused all the evidence it has — this is called “full disclosure.”
4) hearsay evidence is not allowed.
5) a jury’s decision on guilt must be unanimous. All 12 jurors must be convinced beyond a reasonable doubt.
As I write this in March 2026, the Epstein case is still mired in the disclosure swamp.
But as the photos, tapes and emails are leaking out, as the dead man speaks, live men are now scurrying for safety and not talkin’ much.
The media is loving this ground. They are having a field day.
I’m reminded of former president Bill Clinton looking directly into the camera as he categorically declared to the millions watching: “I did NOT have sexual relations with that woman (oops) … Miss Lewinsky.”
Then his DNA (semen) was found on her dress (oops).
Oh… Well, I was defining sexual relations as sexual intercourse…
Suddenly, it wasn’t just a “he says, she says” case.
Unbelievably, decades later, Billy is back to explain the photo of him and the woman in Epstein’s hot tub (three oops and you’re out).
Ironically, a prosecutor has a stronger case with Epstein dead. Live men can lie. Dead men can’t.
Over the 21 years I was a prosecutor, I worked on dozens of murder cases. Many of my colleagues in larger centres had hundreds, but fortunately for me, 16 of those years were in Sault Ste. Marie. I say fortunately because of the toll a murder case takes on those involved. I’m remembering about 20 that I prosecuted, and that was enough for me.
And as a criminal court judge in the Ontario Court of Justice, the only responsibility I had in murder cases was at the preliminary hearing stage. Jury cases were heard in the Superior Court of Justice. And in over 27 years on the bench, I believe I presided over about a dozen.
But those deceased people, over the years in my personal experience, had an increasingly stronger voice helping to bring the killers to justice.
While sometimes heart-wrenching, it was so rewarding to be able to bring to life in the courtroom the true story of what happened to them.
Unfortunately for all those predators and child abusers associated with Epstein, they didn’t get to sigh with relief over the news of his suicide.
That dead man is talkin’ a blue streak.
Norman Douglas is a retired criminal court judge with 27½ years of experience on the bench. His book, You Be the Judge, was published in December 2023.
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