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We are told, and believe, that the presumption of innocence is a core concept in Canadian law. Nobody is or should be presumed guilty until they plead guilty or are convicted in a court of law.
But the reality is quite different. In fact, people are widely presumed to be guilty all through the legal process, from investigation to arrest to charges to public perception to plea bargaining to a trial itself and the standard of ‘beyond a reasonable doubt’. The presumption of innocence exists in words, but often not in fact.
Guilt is assumed by police, crowns, media
The police may issue press releases about an accused person, and these are typically reported in the media as if they were statements of fact rather than allegations which regularly turn out to be wrong or incomplete (leading to so many cases of dropped or stayed charges).
Media coverage of arrests almost always carries a presumption of guilt. Lengthy reports of evidence against someone, usually as presented by the police or prosecutors, is ‘balanced’ by a one sentence statement such as ‘the charges have not been proven in court’. There is seldom an opportunity for the defense to present its position. In fact, usually at the time of media reports the defense has not even seen all the evidence.
Remand and bail assume guilt
A person charged may be held in jail for months awaiting a trial, resulting in many negative consequences such as job or income loss, marriage breakdown, loss of custody of children, loss of housing – only to have her or his charges dropped, or be acquitted – with no compensation of any kind even if the charges were clearly spurious.
A person charged may be released on bail but can be subject to a range of severe restrictions – as if he or she were guilty – from curfews to restrictions on internet use to restrictions on movement or driving or other daily activities to house arrest. These restrictions in themselves assume guilt; if a person were not guilty there would be no legitimate reason to impose them.
Small number of trials adds to the problem
Prosecutors tend to see it as their job to get a conviction, despite clear statements from the Supreme Court that the prosecutor’s job is not to seek a conviction but to want a just outcome, which should mean acquittal or dropped charges if there is reasonable doubt. Yet prosecutors will do their best in court to push away or minimize doubts, even when this may result in wrongful convictions.
Prosecutors often do things like stack charges to get a guilty plea. That is, the person accused may have 10 charges, even though all of them relate to the same actions, yet be told that 8 of them will be dropped if he or she pleads guilty to the other two. Conversely, a person who chooses to exercise the right to a trial can face a much harsher sentence if found guilty. That is why 90% of those accused, including so many people who are later exonerated, plead guilty.
An especially pernicious recent example in Canada was women pleading guilty to manslaughter in the death of their children because of being threatened with a life sentence and loss of all their children if they went to trial and lost. Yet these women were innocent because the evidence against them was unreliable.
If even half the people charged with a crime insisted on going to trial, the entire court system would collapse. As it is, the system can barely function in a timely way when fewer than 10% of charges lead to a trial.
Defendants overwhelmed by the system
As mentioned in a previous post, despite what the law says, the effective standard of conviction in many trials is not ‘beyond a reasonable doubt’ but ‘balance of probabilities’. Not ‘are we absolutely sure the person did this’ but ‘do we think it highly likely the person did this’. Jury trials are particularly susceptible to verdicts based on emotion, but judges have also been shown to have biases that affect the way they deal with trials.
And in coping with all of this, accused persons have far fewer resources. Many can hardly afford to pay a lawyer at all, legal aid is very limited even if someone does qualify, and even those who can afford a legal defense can never match the resources of the state, which can devote as much police time, crown time, and other resources as it wishes to any given case.
And though a person accused faces huge lifetime consequences if found guilty, police, crowns or judges who act in dubious ways almost never face any consequences.
By no reasonable standard could this be considered a system that values the presumption of innocence.