Police behaviour calls convictions into doubt

The standard is “beyond a reasonable doubt,” and it’s critical to our justice system.

It is the key measure by which someone is convicted of a crime.

Here is a handy definition of the concept from Cornell Law School’s Legal Information Institute: “Beyond a reasonable doubt is the legal burden of proof required for a criminal conviction. In a criminal case, the prosecution must prove the defendant’s guilt beyond a reasonable doubt, meaning the evidence must leave jurors (or a judge) firmly convinced of the defendant’s guilt. The standard requires more certainty than any other burden of proof in law. It is much higher than the civil standard of preponderance of the evidence, which only requires that a claim be more likely true than not.”

It is a very high bar.

But it is also a bar which prevents the innocent from being convicted of a crime they didn’t commit.

And there can be many doubts with which to deal.

In a recent Ontario court decision in a case of two counts of impaired driving causing death, the judge’s verdict ran to 16,425 words.

In all, 3,981 of those words — almost one-quarter of the verdict — went to answering questions about the chain of custody for blood samples at Kingston General Hospital, including the way those samples were carried from the hospital’s lab to a forensic lab by an Ontario Provincial Police officer.

It is important.

Lose that chain of custody and an entire impaired driving case can go down the drain. In fact, in the Ontario case, the driver argued “the Crown has not established that the blood drawn and tested at Kingston General Hospital, and later by the Centre for Forensic Sciences, was his or that it was not contaminated.”

It is an issue that regularly crops up in Canadian courts, and can — and does — result in acquittals.

In part, that chain of custody depends on the honesty of something as simple as the bona fides of a police officer who transports blood samples to secure evidence storage and testing.

But what happens if it comes out that the police officer involved is actually not trustworthy, and the transfer of evidence might not have happened with the required thoroughness?

Well, here comes that reasonable doubt.

And that is why hundreds — and maybe thousands — of criminal convictions in Manitoba are now being reviewed.

After Const. Elston Bostock pleaded guilty to a raft of charges — and other charges are still in process against three other Winnipeg Police Service officers — defence lawyers received a letter from the province stating, “Out of an abundance of caution, you are receiving this letter because a conviction was entered on the above charge(s) and officer Bostock had involvement in the incident’s file.”

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Legal Aid Manitoba went further. “If you have received one of these letters, your duty as counsel requires that you do a summary review to determine whether the conduct of the officer named in the letter may have committed misconduct and whether that misconduct would have reasonably resulted in a miscarriage of justice.”

The truth is that the police officers involved might well have not done anything improper in the vast majority of cases that they may have touched. Their role in many cases may also not be large enough to have affected the cases’ outcome.

But what is clear is that, when they have handled cases, their behaviour — both in the past and later — may well have injected a large enough dose of reasonable doubt to overturn cases that are subsequently appealed.

And what do you do for Manitobans who went to jail — or bore the stigma of a criminal conviction — because it turned out an investigating police officer could not be trusted?

Just saying sorry doesn’t sound like enough.