Seeing Justice Through the VR Lens

The first few 1L Criminal Law classes are dedicated to the “big picture” wherein we discuss the purpose of criminal law in the context of the criminal justice system. Unlike the other 1L doctrinal courses, criminal law is laden with context without which the doctrinal aspects would be meaningless. The context includes, but is not limited to the following: the roles and responsibilities of the Crown, defence and trial judge; respecting the trial narrative as real life situations impacting the lives of real people; trial strategy, professionalism and ethics; procedural “choices” and most importantly, the principles of fundamental justice, which permeates all of these concepts. I try to give them a sense of urgency – how vital all the pieces are to the healthy functioning of the system.

Although I like to use the puzzle piece metaphor to explain how each concept relates to one another and the incompleteness should one piece fail or be absent, in retrospect, that metaphor is too static. It fails to connect to the modern aspect, embedded as it is in technology and imagery. A conventional puzzle is too flat to express the multifarious dimensions of the justice system and the delicacy of the model we uphold. The more appropriate parallel is an interactive 3D environment that has presence, weight and texture. In such an environment, we can more fully appreciate the impact each micro-concept has on the macro-institution. This is the justice system as seen through virtual reality optics in which all the images meld together into a coherent and cohesive whole. This cohesiveness, I suggest, comes from those principles of fundamental justice as embodied in our Charter such as the presumption of innocence, fair trial, and the “specialness” of the criminal standard of proof. Of course, the Charter also supplies dissonance to the imagery as we struggle to overlay onto this reality other protected rights coming not just from the individual charged before the criminal law but also the individual who appears before it as witness. In this sense, the pursuit of justice in this VR lens takes on complex contours and new pathways.

Admittedly, this VR depiction seems a little too much for an explanation as to why the principles of fundamental justice matter in our criminal courts but visualization or depiction of the law is as important as articulation. In my working paper on “The W(D) Revolution”, I make a case for the case by showing why the essence of W(D) still matters and how it has revolutionized the way the courts view the presumption of innocence and burden of proof. I emphasize the need to strip down our trial discourse to the essentials - that assessment of the evidence must be done through the lens of those principles of fundamental justice which underline our core values as a society. We say we do this, however, the W(D) journey is also a cautionary tale, reminding us that espousing a formulaic mantra is meaningless without a true commitment to the content of W(D) and those principles the case enshrines. Without that commitment, we are not giving meaning to those values nor are we creating an image of the criminal justice system worth pursuing. We need to view the justice system through the lens of virtual reality and experience the texture of justice as we dispense it. This is why W(D) still matters and this is why teaching context is everything.

In Praise of the Passionate Lawyer

Recently, Rex Murphy eloquently reminded us of the lawyer’s role in the justice system. He did this in support of Marie Henein's CBC interview. An interview she did not give to defend the profession but to remind us of how it works. To remind us, as Rex Murphy stresses, of the core values lawyers protect and engage in: liberty, fairness, and justice through the lens of the presumption of innocence. Some of these values may seem trite or overdrawn but they are not. They are at the very heart of our society as they define who we are and who we are not. For lawyers, who practice in this milieu, these values underscore and frame everything we do. Admittedly, these values, or objectives, are difficult to attain.  Clarence Darrow, who epitomizes these values, once said: “Justice has nothing to do with what goes on in a courtroom; Justice is what comes out of a courtroom.” Thus, these values can be elusive, can be difficult to attain, and can question your belief in them. Perhaps this is why we cherish them even more.

There is one comment made by Rex Murphy I do question. He describes the lawyer’s role as dispassionate. This is not so. To be dispassionate suggests an observer’s role or even an impartial one. Lawyers are not observers: lawyers are in it and they are in it zealously. Perhaps he means lawyers cannot get lost in the emotional content of the case for fear of losing their perspective. It is this perspective, as a person learned in the law, which is of utmost assistance to the client. Nevertheless, lawyers are in the business of passion: Whether it is around us as part of the case or whether we passionately advocate for our client. It is this passion, which connects us, as lawyers and as members of society, to those core values we hold so dear. Passion and compassion is our stock and trade – and so I praise it.

Thoughts On St-Cloud Or How Everything Old Is New Again

After reading the Supreme Court of Canada’s decision in St-Cloud, I was instantly transported back to the heady days of the early nineties: where multifarious decisions produced more questions than answers but left the reader with the comforting feeling that somehow the Charter was above the fray. In those mixed-bag decisions there was the satisfaction that the Charter did make a difference and was shaping the new-look Canadian society. However, this nostalgic wave of emotion was not a “remembrance of things past” but was a physical time travel to the days of Morales, wherein the Supreme Court found the secondary “public interest” ground for justifying detention under the then s. 515 of no force and effect as it violated s. 11(e) of the Charter.

Now, let’s be clear, I agree that the 1990’s version of the grounds justifying detention under the Code is very different than today’s read. However, Justice Wagner’s decision applies a broad brush to those differences resulting in a tertiary ground which looks, feels, and acts like the old version.

In Morales and the companion case Pearson, Chief Justice Lamer unpacked the meaning of “public interest” as a judicial tool to justify the denial of bail. This justification was important to articulate, as the granting of bail was the default position under the section. Similarly, “reasonable” bail was guaranteed under s. 11(e) of the Charter. The meaning of “public interest” was therefore an important indicator of whether or not the law was properly mirroring this Charter right. In order to give meaning to a right, all courts should be in agreement with that meaning or the right is no longer an equitable claim.  If “public interest” could not be crystallized and articulable then it would be of no assistance in grounding a denial of bail. This did not mean that there must be a precise definition but an articulable one. Throughout this discussion, Chief Justice Lamer reiterated the “golden thread” by which the court was guided in viewing the matter – the “golden thread” of the presumption of innocence.

Under this 1990’s microscope, the court was unable to find a consensus on the meaning of “public interest” resulting in a “vague and imprecise” basis for detention, which was contrary to fundamental principles of justice such as the principle of legality as delineated in the SCC case of Lohnes rendered a few months earlier. Upon a thorough sweep of authorities, Lamer C. J. found the term “public interest” was “open-ended” and failed to provide a structure for legal debate.  With such a deficient yardstick, the ground could not be saved under s. 1.

It seems pretty clear from this decision that “public interest” is an unusable phrase from the past, except for this telling line from the Morales decision:

“As currently defined by the courts, the term "public interest" is incapable of framing the legal debate in any meaningful manner or structuring discretion in any way.” (Emphasis added)

Now, flash-forward to the St-Cloud decision and Justice Wagner’s valiant attempts to define “public confidence” seems to make short shrift of the Morales decision. To be sure the 2015 Court is working with a differently worded section and the issue is “public confidence” in the administration of justice and not “public interest” but what is “public confidence” now can be “public interest” then.  Although Justice Wagner is very careful to couch the meaning in Charter correct terms and is mindful of the unique connection release from custody has to our fundamental concepts of the presumption of innocence and burden of proof, the fact remains that these core principles are now bound by the public interest, albeit tempered by the concept of Canada’s nom de plume, “reasonableness.”

This case raises many questions. Not just questions of applicability and not just questions of how this decision will look like in the realities of bail court but fundamental questions such as: is the law looking backward instead of forward by essentially reviving the public interest as a controlling feature of bail? And if so, how does the public interest reside within our fundamental principles, which tend to the individual as opposed to the collective, such as the presumption of innocence as the “golden thread” that appears throughout our notion of criminal law? These hard questions must be asked if we are to move into the future and beyond.

The Golden Thread Metaphor: Section Six And The Other Presumption Of Innocence Episode Nine of the Ideablawg Podcasts on the Criminal Code of Canada – Text Version!

The presumption of innocence – the concept that an accused is presumed innocent until proven guilty - is easily the most well known legal principle. As important as this principle is to our concept of justice, the presumption of innocence has become much more than a legal tool. It has become part of the fabric of our society. Today, every citizen is aware of the presumption of innocence in a criminal case. This principle has transcended the legal arena to become one of our society’s fundamental values. It is not only a value understood by all but it is part of our culture.

Indeed, as an example of the ubiquitous nature of the presumption of innocence, we can find the concept used as a title of a book, such as in Scott Turow’s novel, Presumed Innocent and the movie version with Harrison Ford. Or used as almost a character flaw as in one of my favourite legal literary heroes, Rumpole of the Bailey, written by John Mortimer Q.C. In those stories, Horace Rumple, the rumpled everyman barrister, finds personal solace in his belief in “the health-giving qualities of claret, of course, the presumption of innocence, and not having to clock into chambers in the morning.” In the classic play/movie 12 Angry Men, when Juror #8, played by Henry Fonda, reminds Juror #2, played by John Fiedler, that “the burden of proof is on the prosecution. The defendant doesn’t even have to open his mouth. That’s in the Constitution,” we nod our heads in agreement and relief. Although many of us could not say which section of the Charter (s. 11(d): “to be presumed innocent until proven guilty”) encapsulates this concept, we all take comfort in knowing it is there.

But there is another place where the presumption of innocence is recorded in Canadian law and that is section 6 of the Criminal Code, which is entitled “presumption of innocence,” the first part of which reads as follows:

Where an enactment creates an offence and authorizes a punishment to be imposed in respect of that offence,

(a) a person shall be deemed not to be guilty of the offence until he is convicted or discharged under section 730 of the offence; and

(b) a person who is convicted or discharged under section 730 of the offence is not liable to any punishment in respect thereof other than the punishment prescribed by this Act or by the enactment that creates the offence.

Now, that’s not really the “presumption of innocence” we have come to expect, is it? When you read this section it just does not seem to have that visceral punch I talked about earlier when reacting to the lines spoken in 12 Angry Men. It also does not seem to be conveying the deep, and almost personal societal, values underlying this fundamental premise.

First, let’s look at the wording. Unlike the Charter equivalent, there is nothing in section 6 about a “presumption” only a “deeming.” So the very word, we hang on when discussing innocence, the “presumption,” which gives the concept such solemnity, is gone. Second, there is nothing in the section about “innocence” although the title suggests it. However, as we know from my previous podcasts, in the Criminal Code the headings are there for convenience only and do not form part of the section itself. Instead, I would suggest, the section seems to be contrary to the presumption of innocence as it focuses instead on the concept of guilt and punishment. The section describes the circumstances in which the court can finally impose punishment. Now to be sure the court needs to hold off until conviction, but as soon as that pre-condition is fulfilled the sanctioning regime kicks in and punishment is not only available but also inevitable. Section 6(1)(b) continues this punishment theme by ensuring that the punishment can only be that as prescribed or authorized by law but it adds nothing to our concept of the presumption of innocence. So this section is not really about the fundamental premise of our criminal justice system, the golden thread of criminal law, but about when punishment can, and will, be meted out.

To understand why this section reads as it does, a little legislative history is in order. The section first arose in 1886 legislation on punishment entitled An Act Respecting Punishment, Pardons, and the Commutation of Sentence, and was not only subsumed into the first Criminal Code but was placed in the latter part of the Code where the punishment sections resided. The purpose of the section was not therefore to trumpet the fundamental principle of the presumption of innocence but to reinforce the applicability of punishment at the time of a finding of guilt. This concept of punishment only upon conviction was not only consistent with English criminal law but was consistent with chapter 39 of the Magna Carta which stated that:

No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.

In the original Latin phrase of this article “nisi per legale judicium parium suorum vel per legem terrae,” the Magna Carta protects the accused from punishment without judgment of his equals and in accordance with “the law of the land.” So this idea that an accused is guilty only when he is found guilty, remained under the general punishment section of the Code until 1955, when it was moved to the front part of the Code, namely to section 5(1), but was still viewed as a punishment section as it was then entitled Punishment Only After Conviction. However the wording of the 1955 section does resemble the wording we have today under section 6. It is not until the 1985 revision of the Code, when the section was repealed and reinvigorated as section 6 that it becomes the more venerable presumption of innocence. Of course this reconstitution (forgive my pun) came after the 1982 enactment of the Charter of Rights and Freedoms.

Understanding this legislative history does give us a better sense of how it came into the Code but why it was renamed the presumption of innocence is an unanswered question requiring deeper investigation than an Internet search. Certainly, looking at case law, this section is rarely invoked as authority for the principle of the presumption of innocence. A quick survey of cases reveals there are only a few such cases (these cases can be found here, here, here, and here) where section 6 was relied upon as propounding the concept but always invoked with the constitutionalized version found under s. 11(d) of the Charter.

Although I cannot explain why this presumption section is so named, I would like to take a few moments to consider where the concept of the presumption of innocence arose in the first place. In my earlier posting on the issue, I suggested, through the academic writings of George Fletcher that the concept actually migrated to criminal law from the English civil law. I do not want to return to that discussion, instead I want to take us to the moment when the presumption of innocence becomes imbued with the gravitas it now enjoys – the particular moment when the presumption of innocence transformed into the fundamental principle it is today. I have already alluded to that moment earlier in this podcast when I described the presumption as the “golden thread of criminal law.” In first year law school there a few seminal or landmark English cases we discuss and end up knowing virtually by heart. One of them is the case where this “golden thread” metaphor is first used, the 1935 English House of Lords case of Woolmington v. DPP.  The facts of the Woolmington case do not concern us here but the decision, what is written by the then Lord Chancellor of Great Britain, Viscount Sankey, does.

In order to set the stage for this momentous decision, I need to give a quick legal backgrounder on Lord Sankey and the great impact he had on Canadian law. After the Supreme Court of Canada in 1925 found women were not “persons” under the British North America Act and therefore ineligible to sit in the Senate, the case, known as the Persons case, was appealed to what was then the highest level of appeal, the British Judicial Committee of the Privy Council. Civil appeals to the Privy Council were abolished in 1949, while criminal appeals ended in 1933. Lord Sankey, as a member of the Privy Council, wrote the appeal decision in the Persons Case or Edwards v. Canada (Attorney-General). In the case, reversing the Supreme Court of Canada decision and finding women were indeed “persons,” Lord Sankey commented on the argument that historically women were disbarred from public office. Despite this historical fact, Lord Sankey concluded that “the exclusion of women from all public offices is a relic of days more barbarous than ours” and that “customs are apt to develop into traditions which are stronger than law and remain unchallenged long after the reason for them has disappeared.” In the Persons Case there was no reason why women could not discharge the parliamentary duty of office. In terms of the efficacy of the actual British North America Act, which today we call the Constitution Act, 1867, Lord Sankey, famously remarked that the Act “planted in Canada a living tree capable of growth and expansion within its natural limits.” This metaphor of the Constitution as a living tree has taken root since the 1930 Persons Case and has become a guiding doctrine in our constitutional jurisprudence.

Needless, to say Lord Sankey has a way with words and the Woolmington case was no exception. On the issue of presumption of innocence, Lord Sankey surveyed the textbooks on the issue and was perplexed to find a suggestion that the presumption was one of guilt and the burden was on the accused to prove otherwise. After running through more cases, Lord Sankey described the fundamental importance of the presumption as:

Through-out the web of the English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the
defence of insanity and subject also to any statutory exception.

Lord Sankey then connects the presumption of innocence with the burden of proof, which requires the Crown to prove guilt beyond a reasonable doubt. This connection is explored in my previous blog on the issue. So, it was Lord Sankey who gave use this strong visualization of the presumption of innocence and turned the principle into something much more.

How Lord Sankey came to this golden thread metaphor is puzzling. I suggest that this metaphor must have come from the Greek myth of Ariadne and Theseus. Ariadne gave Theseus a golden thread to help him escape the Minoan Labyrinth after he killed the Minotaur. Thus, the presumption of innocence, as the golden thread of Ariadne, leads the accused out of the maze-like machinations of the criminal law.

This thread theme is reinforced by a further metaphor, which I also referred to earlier in my podcast; that the presumption of innocence is part of the “fabric” of our society. Indeed, I found a 1965 case, R v Dixon, from the then District Court of Ontario, written by Mr. Justice Robinson wherein he describes the presumption as the “golden thread” that “runs through the warp and woof and is thus firmly imbedded in the whole fabric of the administration of English and Canadian criminal justice.” When I first read this passage, not unlike a Wiki page, I thought someone added the phrase “warp and woof” for a joke. But, like a good researcher, I looked up “warp and woof” and found the following definition:

The essential foundation or base of any structure or organization; from weaving, in which the warp — the threads that run lengthwise — and the woof — the threads that run across — make up the fabric: “The Constitution and the Declaration of Independence are the warp and woof of the American nation.” This expression, used figuratively since the second half of the 1500s, alludes to the threads that run lengthwise ( warp ) and crosswise ( woof ) in a woven fabric.

So this thread metaphor is taken in a different direction but is also a good candidate for explaining Lord Sankey’s “golden thread” turn of phrase. By the way, I did take my research a little further to find other cases that have used this archaic phrase. I found only a few cases, some which were actually about fabric making but there was a use of this metaphor in two Supreme Court of Canada constitutional Division of Powers cases; Reference as to the Validity of Section 6 of the Farm Security Act, 1944 of Saskatchewan and the 2009 Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters. Notably, in the 2009 case, Mr. Justice Binnie used the phrase in a delicious quote invoking the world of the 1860s:

The current Canadian economy would be unrecognizable to the statesmen of 1867 and, to borrow an analogy from Thomas Jefferson, one would not expect a grown man to wear a coat that fitted him as a child.  The coat is of the same design, but the sleeves are longer and the chest is broader and the warp and woof of the fabric is more elaborate and complex.  Adopting a purposive approach to constitutional interpretation, as we must, what is important is not how transportation was viewed in 1867 but rather to match in our own era the level of regulation (federal, provincial or territorial) appropriate to the nature and scope of the undertaking.  Now, as in 1867, when a transportation undertaking connects or extends “beyond the Limits of the Province” its regulation is assigned by the Constitution Act, 1867 to the federal level of authority.

In 1859, Charles Dickens also used a golden thread metaphor in A Tale Of Two Cities, to suggest a strong bond of familial love created by the indomitable Lucie. Although, there is a strong affiliation between the criminal law and the presumption, I still prefer the Greek myth connection. I should recommend here my previous blog on Charles Dickens and the law called Charles Dickens Is On The Side Of Justice wherein I discuss some of the more legally minded passages of Dickens’s novels. 

One final aside on this golden thread metaphor brings us to American literature and Nathaniel Hawthorne’s Scarlet Letter, where Hester is required to sew a letter “A” onto her clothing as her punishment as an adulterer. As time wears on, Hester proudly marks her shame with an “A” made of golden thread. For Hester, the golden quality of the thread reflects the shame of the community who branded her with their cruelty.

In some way the golden thread of the presumption of innocence protects us from a similar fate – a society devoid of compassion - or as Chief Justice Dickson, as he then was, reminded us in the 1986 Supreme Court of Canada Oakes case, the presumption of innocence "confirms our faith in humankind; it reflects our belief that individuals are decent and law‑abiding members of the community until proven otherwise." To me, his words are indeed golden.

 

 

The Cabbie and the Glider: A Tale of Two Bail Hearings

Two stories surfaced in Canadian legal news this week: the Montreal cab driver, charged after running down a man after he attacked his cab and the British Columbia hang glider operator charged after a woman he was flying with fell to her death.

The Montreal story went viral after a video was posted showing part of the altercation. It is shocking to see the cab driver bombarded by the mob but equally shocking to see his cab turn into the crowd and run down the victim. As heated as the incident was, the bail hearing appearance on May 2 was more so as an outraged group of cab drivers descended on the Montreal courthouse to lend support for the driver. The media picked up story after story from the crowd of cabbies, many of whom were immigrants, of humiliating and violent incidences of passenger misconduct involving racially motivated comments.

According to media reports, the 47 year-old cab driver of Haitian origins, Guercy Edmond, was released on a “promissory note”, with conditions, in the amount of $3,000.00. He was released on bail after a tongue lashing by Quebec Judge Jean-Pierre Boyer over the length of time the cabbie sat in custody (four days) and the crown attorney’s failure to review the video-tape, posted on YouTube of the altercation. He faces charges of aggravated assault under section 266 of the Criminal Code, assault with a weapon (presumably the cab) under s. 267, failing to stop at the scene of an accident under section 252, and dangerous driving causing bodily harm pursuant to s. 249(3).

By way of explanation, our criminal law system, based upon the English common law tradition, presumes an accused will be released from custody without conditions. This bail presumption is very much connected to our cherished presumption of innocence: upon arrest, the accused is presumed innocent until proven otherwise by the crown prosecutor in a court of law before an impartial and independent judiciary. The bail presumption is also consistent with our Charter rights: section 11(d), which constitutionally protects the presumption of innocence, section 11(e), which gives the accused the right not to be denied reasonable bail without just cause, and particularly the s. 7 right to liberty, which cannot be deprived except in accordance with our principles of fundamental justice. On this basis, the bail procedures in the Criminal Code require unconditional release. For example, section 515(1) of the Criminal Code states that:

Subject to this section, where an accused who is charged with an offence other than an offence listed in section 469 is taken before a justice, the justice shall, unless a plea of guilty by the accused is accepted, order, in respect of that offence, that the accused be released on his giving an undertaking without conditions

Any decision contrary to this fundamental principle of release can only be done in very restrictive circumstances. However, there are exceptions to the general rule, where the presumption is not for release (also known as a “reverse onus” situation where the accused must “show cause” why detention in not required), for more serious offences such as murder (section 469 offences) or for those accused already on a prior form of release.

Consistent with our desire to protect the innocent, section 503 of the Criminal Code requires an accused, who is not released upon arrest, to be brought before a justice of the peace or provincial court judge for a bail hearing within 24 hours of arrest without unreasonable delay or as soon as practicable. In Alberta, due to a “promise” made by Ralph Klein when he was Premier, there are 24-hour bail hearings available. In any event, once brought before a judge, the Code does permit a bail hearing to be adjourned for a maximum of three days without the consent of the accused. Thus, Mr. Edmond, who was arrested on Sunday, April 29, appeared before a judge, within twenty-four hours of his arrest, on Monday, April 30. At that time, the hearing was adjourned within the three-day time limit, without requiring consent of the accused, to Wednesday, May 2.

In Mr. Edmond’s case, the crown was objecting to his release from custody. Our criminal law requires an accused to be released from custody unless there are cogent reasons not to release the accused. If, as in the case of Mr. Edmond, the Crown objects to release, the Crown must “show cause” or justify why the accused should not be released. In fact, even if the accused is released, the crown must also “show cause” why conditions to that release would be required.

There are three grounds for detention under s. 515 (10) of the Criminal Code. Section 515(10)(a) requires the justice to order detention where it is necessary in order to ensure the accused’s attendance in court. Section 5151(10)(b) requires a detention order where it is necessary for the “protection or safety of the public” including a substantial likelihood the accused would commit further offences or interfere with the administration of justice. The last ground deems detention is necessary to “maintain confidence in the administration of justice.” This last ground requires the justice to consider evidence relating to the strength of the crown’s case, the seriousness of the offence, the circumstances surrounding the offence, and the potential sentence to be imposed upon conviction.

On this basis, clearly, Mr. Edmond, who had no prior criminal record, enjoyed the support of his family and peers, was the financial support for his wife and two teenagers, and who allegedly committed the offences in extreme circumstances, would be an excellent candidate for release. In other words, the crown would be hard pressed to justify his detention. This is the reason why the judge was less than impressed with the prosecutor at the time of the bail hearing: there was no justifiable legal reason why the crown should not have consented to the release of Mr. Edmond. Although the police, in certain circumstances, also have the authority to release an accused from the police station, the charges laid against Mr. Edmond were serious enough to require his attendance before a judge. Mr. Edmond is to appear in court, to set a date for trial, on June 20.

Just a note here on the form of Mr. Edmond’s release. According to the media reports, Mr. Edmond was released on a “promissory note,” which is not one of the authorized forms of release under the Criminal Code. Again, due to the presumption in favour of release without conditions, the forms of release available run from the least restrictive to the most restrictive. The least restrictive form of release is known as an “undertaking,” with or without conditions. This release, also known as a Form 12 release, is a document signed by the accused wherein the accused “undertakes” to attend court on a particular date and time. If there are conditions, such as reporting to a police officer or remaining in a particular jurisdiction, they are listed on the signed form as well. The next form of release, more restrictive than an undertaking, is a recognizance. A recognizance requires the accused to acknowledge a debt to the Crown, which is forfeited if the accused fails to appear in court. The amount is specified in the document and may or may not require the amount to actually be deposited with the court. A recognizance may also require a surety, who is a third party willing to ensure the accused appears in court and follows any release conditions. A surety may also be required to acknowledge a debt to the crown, which may be forfeited if the accused breaches bail. Considering Mr. Edmond was released with a monetary amount ($3000) attached, most likely the form of release was a recognizance with no sureties and no deposit.

One of the conditions of Mr. Edmond’s release requires him to not pick up fares on St. Laurent Blvd. between Sherbrooke and St. Joseph Sts. between 9 p.m. and 6 a.m., which is within the same area in which the incident occurred. According to the evidence read into court, before the events before the video recorded the altercation, started in the cab after Edmond picked up “very drunk” passengers, one of who was the victim, Benoit Kapelli. While in the cab, Edmond was subjected to racially motivated comments and was assaulted by Kapelli, who ultimately left the cab while kicking at the vehicle. Edmond confronted Kapelli, but the other passengers joined in the attack of the cab. Edmond was able to drive away but was still tracking the passengers as they walked. At this point, the explanation for the events become vague as Edmond’s cab either deliberately or accidently swerved into a lamppost close to Kapelli, resulting in the cab’s front fender falling off. Later, as seen in the video, a pedestrian throws the bumper at the cab. Again, watch the video here to see the final moments of the incident.

The hang glider’s fate was not so certain as the Judge adjourned his bail hearing to Friday, May 4 in anticipation of gathering more evidence. The evidence, of course, is actually inside the accused, William Jonathon Orders, who swallowed the crucial memory card capturing a video of the fatal flight. As they say “this too will pass” and with the passing it is likely Mr. Orders will then be released on bail. Mr. Orders is charged with willfully attempting to obstruct the course of justice pursuant to s. 139 of the Code for his attempt to hide the evidence from police investigation. No doubt further charges, such as criminal negligence or even manslaughter, will ultimately be laid, when the physical swallowed evidence is finally retrieved.

 

 

The Presumption of Innocence: The International Perspective

The presumption of innocence is firmly entrenched in the Anglo-American justice system. As discussed my last two postings, found here and here, the presumption of innocence has grown into its own: from simple beginnings as a rule of evidence, it is now the cornerstone of our criminal law.

As a result of the development and acceptance of the presumption of innocence in the Western legal tradition, the presumption has also taken root internationally. Most International human rights documents speak to the presumption of innocence as a required element of a fair trial.

The presumption of innocence protection appears under Article 11(I), in the post-World War II Universal Declaration of Human Rights, of which I have discussed in a prior posting. Additionally, the International Covenant on Civil and Political Rights of 1966 in Article 14 contains the right to the presumption of innocence. As a signature nation to the UN, Canada has adopted these documents as evidenced by our own Charter equivalent found in s.11(d).

However, it is easy to see why Canada, the United States, and other Commonwealth countries would readily implement this right into their legal process considering the English common law legal origin of the presumption of innocence. For other signatory countries following the differing tradition of an inquisitorial based legal system or Continental Law, the issue of implementing the presumption of innocence is not as simple despite their acceptance of the Latin maxim of in dubio pro reo, meaning “when in doubt, for the accused.”

In France, for instance, the presumption of innocence or presomption d'innocence comes not from case law, but from the political and philosophical heart of the Nation as found in the 1789 Declaration of the Rights of Man and of the Citizen under article 9, which reads in part “Tout homme etant presume innocent jusqu'l ce qu'il ait eti dc'clare coupable” or “As all persons are held innocent until declared guilty.” As argued by Francois Quintard-Morenas in an excellent journal article in The American Journal of Comparative Law on The Presumption of Innocence in the French and Anglo-American Legal Traditions, although the French have arrived at the presumption in a more cultural manner and have implemented it consistent with their legal tradition, it is still a defining principle of French continental law.

The German concept of the presumption of innocence or unschuldsvermutung derived from the Latin maxim of in dubio pro reo was integrated into their legal system as a result of the adoption of International human rights documents such as the 1950 European Convention on Human Rights in article 6(2). Again, World War II had a large impact on the acceptance of this principle.

Interestingly, Spain and Russia have, within the last decade, turned to a jury trial system requiring the implementation of the presumption of innocence as an integral part of the jury trial process. Although continental law accepts the concept, it is quite another matter to integrate the concept into the continental inquisitorial system. It becomes even more complicated when the jury system, a purely English common law construct, is imposed. For an interesting discussion of this issue, see Stephen Thaman’s article Europe's New Jury Systems: The Cases of Spain and Russia in Law and Contemporary Problems, Vol. 62, No. 2, The Common Law Jury (Spring,1999), pp. 233-259.

In the People’s Republic of China, the presumption of innocence does not exist, but neither does the presumption of guilt. Instead, the Chinese legal system “presumes” nothing, preferring to seek “truth from facts” by “taking facts as the basis and the law as the yardstick.” Yet, this seemingly neutral manner of deciding guilt or innocence contradicts case reality: certainly the “Gang of Four” trial would suggest otherwise. For an interesting discussion of these issues, see The People's Republic of China and the Presumption of Innocence by Timothy Gelatt found in The Journal of Criminal Law and Criminology (1973-), Vol. 73, No. 1 (Spring, 1982),pp. 259-316.

All of this leads us to appreciate that Anglo-American legal principles do not “rule” the world. There are many other jurisdictions where our fundamental core principles are either not followed or are merely general guidelines. Legally, this may be acceptable. When, however, a fundamental value like the presumption of innocence is involved, it becomes more difficult to accept the differences.

 

Tracing The Presumption of Innocence Through A Survey of Supreme Court of Canada Cases

In yesterday’s blog, the presumption of innocence, as a legal principle, was traced from its seemingly innocuous origins as a rule of evidence in civil cases to the status of a fundamental, constitutionally entrenched, principle of the criminal law. Today, I will detail how the presumption of innocence took on such elevated standing through a brief survey of early Charter and pre-Charter Supreme Court of Canada cases.

On a quick review of the Supreme Court of Canada cases discussing the presumption of innocence, it is the 1985 SCC reference case of Re B.C. Motor Vehicle Act, which explicitly crystallizes our present concept of the presumption of innocence as a fundamental principle of the criminal law and as a fundamental societal value. Justice Lamer described the presumption as not just a procedural tool but also as a substantive concept which “has both a societal and an individual aspect and is clearly fundamental; to our justice system.” The Charter’s influence in protecting such an expansive view of the presumption, thereby making the principle a right, is evident in other early post-Charter cases on the issue, such as the earlier case of Dubois in 1985, Oakes in 1986, and Whyte in 1988.

As an aside, it is no surprise that it is Justice Lamer who gives the presumption of innocence such an expansive and meaningful definition. Prior to his judicial appointments, Antonio Lamer was the Vice-Chairman of the Law Reform Commission of Canada (LRCC) in 1971 and Chairman thereof in April 1976 at a time when the LRCC was actively involved in shaping the jurisprudential landscape of the law.

In terms of pre-Charter, although Justice Estey, dissenting in the entrapment case of Amato in 1982, called the presumption of innocence a “fundamental doctrine,” there is little of this nomenclature in earlier cases. For example, in the 1969 Lampard case, the presumption of innocence is merely called “rebuttal,” hardly a powerful descriptor of the “cornerstone” of criminal law. Other pre-Amato cases characterize the presumption in the same manner: as a presumption, which ceases if the Crown can prove guilt beyond a reasonable doubt. Even in some earlier cases, the presumption is referred to as the “general presumption of innocence,” again a thoroughly unsatisfactory way of describing a constitutionally entrenched right. Interestingly, in all of these cases, the presumption is an adjunct to the burden of proof.

Finally, consistent with Fletcher’s theory of the origins of the presumption in English civil law, is the 1883 SCC case of McRae v. White. The case was one of unjust and fraudulent preference in an insolvency action. Although a civil suit, the case does have shades of fraudulent and therefore criminal intention, but the result is based upon a failure of the plaintiff to satisfy the onus as required by the Insolvency Act of 1875.

In other words, the plaintiff could not rebut the negative: that a man is presumed to fulfill his legal obligations. In this case, the defendant, in good faith, took on debt with the honest belief he would fulfill his obligations. The plaintiff was unable to establish otherwise. Admittedly, there is no mention of the actual phrase “presumption of innocence,” but the headline of the case reads “Insolvent Act of 1875—Unjust preference—Fraudulent preference—Presumption of innocence.”

Clearly, the presumption of innocence has matured into a much more powerful concept than originally imagined. This is so, at least in the legal arena. In my final posting on the issue, tomorrow I will discuss the international development of the presumption with an additional look at the historical non-legal usage of the concept.

 

 

 

 

 

The Presumption of Innocence: The Making of a Principle

The presumption of innocence is at the heart of our criminal justice system. As a cornerstone of criminal law principles, the presumption of innocence guarantees a fair trial for all. By ensuring only those individuals who are found guilty will be punished, it protects the vulnerable individual from the awesome powers of the State. It is indeed a fundamental principle, constitutionally entrenched in our Charter, and an integral part of our rule of law.

As important as this principle is to our concept of justice, the presumption of innocence has become much more than a legal tool; it has become part of the fabric of our society. Today, every citizen is aware of the presumption of innocence in a criminal case. This principle has transcended the legal arena to become one of our society’s fundamental values. It is not only a value understood by all but it is part of our culture. It can be found in journalism, literature, movies, and television.

Yet, historically, according to academic scholars, the presumption of innocence was not a fundamental principle but a general rule of evidence used in civil cases. In a series of articles, George Fletcher, a well-known scholar now Cardoza Professor of Jurisprudence at Columbia Law School, maintained the presumption of innocence did not become part of the common law nomenclature until the mid-1800s.

In fact, the concept of the presumption arose from a series of civil cases in the early 1800s wherein the court applied the common sense evidentiary rule that a man (yes, this is the early 19th century) is presumed to fulfill his legal obligations. Thus, if a plaintiff is alleging the negative situation, that the defendant did not fulfill his legal obligation, then the plaintiff must prove otherwise. Only later, did this evidentiary rule apply to criminal case and then became, what we call, the presumption of innocence.

According to Fletcher, even the core concept of the burden of proof in a criminal case, which requires the Crown to prove guilt beyond a reasonable doubt developed separately from the presumption of innocence and only later, in the 1850s, did these two principles become connected. In the Commonwealth, the ultimate articulation of this connection is found in every first year law student's curriculum: the House of Lords case of Woolmington v. D.P.P from 1935. In this seminal case, Lord Sankey famously describes the presumption of innocence and the burden of proof in a criminal case, which is to prove the crime beyond a reasonable doubt, as the "golden thread...woven deep into the fabric of our law."

In the Oakes case, Chief Justice Dickson waxed eloquent on this dual concept and found the presumption of innocence essential to society as it "confirms our faith in humankind; it reflects our belief that individuals are decent and law‑abiding members of the community until proven otherwise." It was indeed the Charter which elevated and crystallized the presumption of innocence as the fundamental concept of our criminal justice system.