The meaning of innocence

Hey there, time traveller!
This article was published 23/08/2006 (7149 days ago), so information in it may no longer be current.

IN a recent column, Free Press reporter Dan Lett raised the troubling issue that arises when a person is the victim of a miscarriage of justice and wrongly convicted but who has not otherwise solved the crime. In other words, if Jim Driskell was wrongly convicted, and everyone agrees he was, since no other perpetrator has been identified, can it also be said he is innocent and therefore have his name cleared?

The matter of actual, factual innocence is especially troubling for the authorities because it opens the door to the payment of substantial compensation, and, perhaps more importantly, it raises the spectre that a killer, in the case of murder, may still be at large. It presents a situation not just of systemic, procedural failure, but also one of very serious potential threat to public safety.

These are powerful factors that have led to the creation, as Lett points out, of a sort of hybrid concept of innocence.

In order to understand the root of the issue, one must pay close heed to some very basic and fundamental concepts of democracy in general, and in particular, how democracy treats its criminal justice process.

In Canada, the Charter of Right and Freedoms in Sec. 7 declares: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

Although the first section of the charter allows for intrusion on this right if warranted in accordance with other demonstrable democratic principles, Sec. 7 is our basic guarantee of freedom. This is rather important, and it is axiomatic to say that this right also existed before the adoption of the charter, with its roots lodged firmly in the Magna Carta and a legacy of British and Canadian common law.

We take it as a basic value in our society that freedom is something we don’t trifle with lightly, and the state cannot intrude on it without good reason.

As a society, we have also determined that people who are proven to have committed crimes are subject to a deprivation of their freedoms in a variety of forms provided for in the Criminal Code. Jail is one example of this.

But because we are so finely attuned to the protection of our liberty, the law, even before the Charter, provided for a further concept that draws a line in the sand. It is called the presumption of innocence. This idea is also captured by the Charter in Sec. 11(d) which provides that everyone “… is to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.”

The combination of sections 7 and 11 says that all Canadians are free and innocent until the state proves otherwise. Moreover, the concept of innocence survives until such time as the state has proven otherwise by a standard achieving proof beyond a reasonable doubt.

Therefore, Canadians who are charged with committing a crime do not have to prove their innocence. They are in fact and in law, innocent until having been proven otherwise. Like it or not, this is the law of Canada, and it really is not all that complicated either on its face or in the context of basic democratic philosophy.

If a prosecution fails because of a lack of proof beyond a reasonable doubt, there is no provision for guilty but not proven. There is no room for the almost gossipy approach that someone beat the rap ‘but we all know he or she did it’. Rather, as noted, he or she can only be said to have ‘done it’, if in fact it was proven so by proof beyond a reasonable doubt.

It is plain wrong to suggest otherwise because if this idea of ‘not proven’ or as it is sometimes called ‘factual innocence’ is allowed to survive, it undermines the very notion of the presumption of innocence. It imposes an obligation on the individual to essentially be forced to answer the question ‘if you did not do it, then who did?’

A recent example of the unacceptability of this reversal of the standard onus of proof arose in the case of Gregory Parsons, a wrongly convicted man from Newfoundland. Crown counsel at Parsons’ trial called on the jury on her closing address to consider “If Greg Parsons didn’t cause his mother’s death, who did?”

Parsons in fact had not caused his mother’s death but for a whole variety of reasons was wrongly convicted. Conducting a formal inquiry into this wrongful conviction, former chief justice of Canada Antonio Lamer referred to the Crown’s ‘if he didn’t do it then who did’ comment and noted: “This statement is obviously improper since it suggests the accused has an obligation to establish that someone other than him had committed the murder.”

If it is improper where someone is actually accused and in a trial, then it should be even more improper where an individual is not even within the formal judicial process. At least Parsons was accused.

It allows society to in effect impose a form of deprivation of liberty without the safeguards that are both enshrined in the Charter and which have existed for centuries before.

The individual who falls into this position can be ruined for life by carrying the ongoing insinuation that they are a guilty but unproven criminal perpetrator. Yet how can the nudge nudge wink wink we-all-know-he-did-it version of convicting people be even remotely consistent with the basic notion of liberty and fair process?

It is an insidious attempt to circumvent due process, and I would argue that the idea of factual versus legal innocence is in and of itself a violation of sections 7 and 11 of the Charter.

If we are to give meaning to these very important concepts of liberty, it may mean that people who actually did commit a crime but were acquitted or otherwise not successfully prosecuted may never be held responsible for their acts. To be sure, that is an outcome no one desires except perhaps for the person who got away with their criminal deed.

But this only hearkens to the famous admonition that it is better a guilty man go free than an innocent man be imprisoned for something they did not do.

If Jim Driskell has not been proven guilty beyond a reasonable doubt then he is innocent. Plain and simple.

David Asper is executive vice-president of CanWest Global Communications, chairman of the National Post and a former counsel to David Milgaard.