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Presumption of innocence

Photo by Gerry Kahrmann , PNG

Photo by Gerry Kahrmann, PNG

A response to Further separation of enforcement and judicial powers needed, by Ian Mulgrew, Vancouver Sun, March 4, 2016

Hi Ian… Once more I arrive on your doorstep singing praises.

It is long overdue that someone examined the summary process we have adopted for drinking and driving offenses. It became so politically incorrect to raise any flaw in the system that could be seen as mollycoddling drunks that we have truly thrown the baby out with the bathwater.

This is really a fundamental question. As soon as you cast aside the principles of the administration of criminal justice then you have committed yourself to the slippery slope that leads inevitably to injustice on a major scale. The exceptions made are always done in the name of convenience, cutting expense and that sort of thing and have as their underlying feature that the crown and it’s officers can be relied upon to be fair at all times. A short spell of legal practice in the lower criminal courts will soon dispel that naive notion. Absolute power corrupts absolutely and there are no exceptions, not even your friendly policeman.

If that proposition weren’t true, the presumption of innocence wouldn’t have entered our criminal law system, nor would it have been so emphatically stated and, for the most part, so religiously followed.

As every law student learns very quickly, Viscount Sankey had this to say in Wilmington v. The DPP, in 1935:

Throughout 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… the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.

The basic corollary to this rule is that it’s damned inconvenient for the crown, brings bad publicity to the justice system, is expensive as hell, and generally finds little favour with the public – until they find themselves in trouble. It used to amaze me back in my days as a young barrister in what we called “police court” to hear policeman badmouth the hell out of good defense counsel but then, when they got in trouble themselves, get the very best.

Of course this rule breeds irresponsible behavior. Guilty men go free, wealthy guilty men almost always go free. It’s expensive and requires watch more investigative work and legal endeavour than assuming that if the accused hadn’t done it, why the policeman wouldn’t have arrested him!

In fact, the only benefit of justice under the presumption of innocence is that it is fairer than any other system by far.

It gets down to this, are we prepared to pay a price for fairness or not? If we are then we should damn well pay it, as it is, essentially, an insurance premium to protect our freedom from state oppression.

You have accurately portrayed BC’s history in impaired driving cases. No doubt the laws had to be strengthened and there was a problem to be addressed. To solve it by abandoning that “one golden thread” and assuming that arrest is tantamount to guilt has been a huge mistake.

You have pointed out the consequences of that mistake, and it’s never going to get better unless the government steps in and reminds itself forcefully that the laws of evidence did not happen the day before yesterday but developed over centuries; that it’s not enough to simply say we’re now in the 21st-century without demonstrating that the basic principles we have developed no longer should apply and that proposed changes still provide the fair play which they were designed to give us.

As society spins at high speed through the Digital Age, it rejects ancient rights and protections at enormous peril.

Keep punching, Ian, and I pray your publisher has the guts to keep permitting you to take necessary jabs at the Establishment.

Best,

Rafe

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