Innocence: Presumed?

The English jurist William Blackstone coined the now clichéd phrase, “it is better ten guilty men go free than one innocent man be punished�: Commentaries on the Laws of England, (1769) book 4, chapter 28.

Ever since one of the central, and most cherished, of common law principles is the presumption of innocence.

In the U.S.A. the presumption has never achieved formal constitutional entrenchment: Coffin v. U.S. 156 U.S. 432 (1895) at 454; but, “…its enforcement lies at the foundation of the administration of our criminal law� (Ibid., at p. 454).

Charter §11(d)

In Canada §11(d) of the Charter of Rights and Freedoms (being Schedule B, to the Constitution Act, 1982) reads,

“11. Any person charged with an offence has the right… (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.�

The Presumption

Legal presumptions are rebuttable; that is, it will be up to a trier of fact (e.g., a judge) to take to be true the presumed fact, unless and until, the party challenging it has accumlumated and introduced enough evidence to demonstrate beyond a reasonable doubt, that the assumption is untrue.

Thus, the presumption is a legal device which is designed to ensure that the accused is not convicted unfairly, or without probative evidence: i.e., Reference re Milgaard (Can.), [1992] 1 S.C.R. 866.

Duty Of The Prosecution

Crown “…counsel must exercise th[eir] discretion fairly, impartially, in good faith and according to the highest ethical standards�: Federal Prosecution Service Deskbook §9.3 4, ll. 4 – 5.

Rand J. in Boucher v. The Queen, [1955] S.C.R. 16 (S.C.C.), at pp. 23-24 put it this way: “It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.� [Emphasis added] See also, R. v. Charest (1990), 76 C.R. (3d) 63 (Qué C.A.) per Fish J.A.

It is extremely important to the proper administration of justice that Crown counsel be aware of and fulfill their duty to be fair: Cunliffe and Bledsoe v. Law Society of British Columbia (1984), 13 C.C.C. (3d) 560 (B.C.C.A.); to act objectively: R. v. Regan, [2002] 1 S.C.R. 297; and to see that only the right person is convicted: R. v. Sugarman (1935), 25 Cr. App. R. 109.

They have not only a legal obligation to do so, but a professional obligation: Conduct Rule 4.01 (3) of The Law Society of Upper Canada, “[w]hen acting as a prosecutor, a lawyer shall act for the public and the administration of justice resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect;� see also, CBA Code of Professional Conduct, chapter VIII, p. 29 commentary 7.

In PracticeÂ…

However laudable the Parliament's intent may be, the justice system is ultimately placed in the hands of people, who with all of their human frailties, don't always believe what they are supposed to.

While allegations abound that Crown prosecutors have acted in bad faith: Krieger v. Law Society of Alberta, [2002] 3 S.C.R. 372; that they have failed to disclose: R. v. Stinchcombe, [1991] 3 S.C.R. 326 per Sopinka, J. at §§11 and 19 – 21; R. v. Egger (1993), 82 C.C.C. (3d) 193 at 203 (S.C.C.); and R. v. La, (1997), 116 C.C.C. (3d) 97 (S.C.C.), at pp. 106-107; or acted in malice: Nelles v. Ontario, [1989] 2 S.C.R. 170; or engaged in other abuses of process: R. v. Jewitt, [1985] 2 S.C.R. 128; R. v. Leduc, [1993] 3 S.C.R. 641; and R. v. Finn, [1997] 1 S.C.R. 10; the number of instances in which prosecutorial misfeasance/malfeasance can be proved are rare.

Which is not to say that they don't exist: R. v. Roberts & Viccars, [1998] B.C.J. No. 3184 (Prov. Ct.) where the court found that, “the abuses in his case are varied and blatant and span the investigation … what [the CRA officer] did, aided and abetted by his supervisor…� showed “distain for the Charter;� and R. v. Saplys [1999] O.J. No. 393 (Ont. Gen. Div.)

It is instances such Roberts and Saplys, which indicate that among federal agencies, the Canada Revenue Agency, may have to work hardest to see that its officers comply with §11(d) of the Charter,

In the mean time, as Thomas Jefferson said, “the price of freedom is eternal vigilance.�

Staff Writer
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