Post #240

900 words; 4 minutes to read

Summary: The serious problems revealed in the Zameer case are not rare; they occur every day in Canada’s justice system but usually do not get noticed.

The acquittal recently in Toronto of Umar Zameer on charges of having murdered police officer Jeffrey Northrup has generated a huge amount of commentary.  However much of this commentary has focused only on this case and has not addressed the vitally important larger issues it raises.

Presumption of guilt

Although our system often speaks with pride about the presumption of innocence, the reality is that the public assumption is more often that arrest is equivalent to guilt.  Media stories tend to report what the police say.  Those accused are (rightly) advised not to speak in public so their account is often not available. Then politicians and others weigh in without knowing the facts, further stoking anger towards an accused person.  In parts of Europe, the names of those arrested cannot be published unless they are convicted, but here media and social media attention can ruin a person’s life regardless of whether there is an eventual conviction or not.

The important point is that the Zameer case is not at all exceptional.  Similar things happen every day – but we don’t hear about them.  A very large number of arrests (though we do not know how many) do not lead to criminal charges being laid.  But even when charges are laid, about 40% of the cases (and half of murder charges) do not lead to a conviction.  This means that every year in Canada, more than 100,000 people go through the trauma of arrest, and spend time in jail or on bail (often with very restrictive conditions), without ever being convicted of anything.

Nor is there any recompense for people in that situation, even if as a result they lose their jobs, their housing, their marriages, access to their children, and have to spend all their life savings on legal representation.  These are fundamental facts of criminal justice in this country that are rarely acknowledged.

Not all lives considered equally important

One reason this reality does not get more attention is because those arrested tend disproportionately to be marginalized people: especially poor, young, and minorities.  And that is not necessarily because those groups commit more crimes, but because policing focuses on these groups.  The tendency of police to stop and arrest visible minority young men without reasonable cause has been well documented in Canada – in Toronto, in Halifax , in Edmonton, in Winnipeg, in Vancouver and in many other countries. It is a universal fact of policing.

It is instructive to consider what happens in cases where police or jail guards are thought likely to have caused harm.  There are many cases in Canada where a prisoner died due to what was later ruled a homicide, or in which police kill someone, in which nobody is ever charged, let alone convicted. In those cases, there are no demands from politicians or the media that those considered responsible for the death should be held without bail – or even that they should be charged.

Tunnel vision

Police and prosecutors often have ‘tunnel vision’.  They decide very early that someone is guilty, instead of genuinely following the evidence where it leads.  The problem of drawing premature conclusions about guilt was the very first one identified by a national task force on wrongful convictions.  And when there is pressure to make an arrest such as in a high profile case or the death of a police officer, tunnel vision is more likely.  Yet prosecutors have a large amount of discretion in which cases they pursue.

Police lie in court

Sadly, there seem to be many instances in which judges conclude that the police lied in their testimony.  Nor is this new.   While the police are constantly calling on the public to come forward with evidence that might help with a conviction, when it comes to cases involving other police, they constantly refuse to come forward, and even alter their testimony to support their colleagues.  That’s understandable from an emotional stance, but surely not in terms of contributing to justice.  Nor does perjury by police lead to criminal charges against them, as it would for most people.

Most accused cannot afford to defend themselves properly

A good legal defence is expensive.  An important case, which often stretches over years, can take hundreds if not thousands of hours of a lawyer’s time.  It may call for private investigations, expert witnesses, psychological assessments, and many other elements all of which cost money.  For any significant charge, the costs can easily be several hundred thousand dollars.  Very few Canadians can afford that and Legal Aid is available only to those who are virtually destitute.  Many accused persons have to settle for a plea bargain even when the facts are on their side.

These features all seem to have operated in the case of Mr. Zameer, but they also operate every day in thousands of other cases in this country.  Mr. Zameer was acquitted, though not without huge psychological and economic costs to him and his family.  Many others are not so lucky.   A  report on false guity pleas quoted  Andras Schreck, then a defense lawyer, later a judge of the Ontario Superior Court of Justice – “I would think that it [wrongful conviction] probably happens hundreds of times a day.”  That must be seen as unacceptable in any justice system worth the name.

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