Trust in Canada’s criminal justice system

Safeguards are in place to assure fairness, Neil Robertson writes.

On April 6, Gerald Stanley was committed to stand trial on a charge of second-degree murder in the death of Colten Boushie, relating to an incident at Mr. Stanley’s farm near Biggar on Aug. 9, 2016. The trial is scheduled for January in Battleford.

While Canada’s criminal justice system is not perfect, the public should be confident that this case, like any other, has been and will be handled fairly and according to law.

Any criminal charge of murder is serious and involves tragic circumstances. The trial of the accused seeks to provide both justice and reassurance to the community. Family and friends of the accused and victim are especially affected and concerned. But all citizens rely upon a justice system that has evolved over centuries to provide a high degree of fairness, effectiveness and impartiality. It is also a deliberate process that avoids any rush to judgment. This is especially important when public sentiment is aroused.

The principles that apply throughout are impartiality, independence and expertise by the police, lawyers and judges involved in the criminal process.

Our Constitution and its conventions protect against political interference and undue influence of popular opinion. Police officers and judges are both appointed to a public office and have a high degree of institutional independence.

The police who investigate crimes are sworn to uphold the principles in the Canadian Charter of Rights and Freedoms. Before any charge may be laid, the police must be satisfied they have gathered evidence that provides reasonable and probable grounds that the person charged committed the alleged offence. That evidence is provided to the Crown prosecutor, who in turn must disclose the same evidence to defence counsel.

In many cases, the police will consult with the Crown prosecutors before laying serious charges. But even if they do not, once the charge is laid, the Crown will review the police investigation to satisfy their own dual test that: 1. there is a reasonable likelihood of conviction; and 2. it is in the public interest to prosecute the offence. The Crown prosecutor does not seek only to obtain a conviction, but is duty-bound to ensure that all relevant evidence is presented at trial, including evidence that might assist the accused in his or her defence.

For the most serious crimes, such as murder, there is a preliminary inquiry before a provincial court judge. Before the accused can be committed to stand trial, the judge must be satisfied there is sufficient evidence to support the charge. This preliminary inquiry also provides the defence with the opportunity, before trial, to question prosecution witnesses.

The Crown, at trial, is obliged to prove, by admissible evidence, that the accused is guilty beyond a reasonable doubt. If the Crown fails to meet this burden, then the accused must be found not guilty.

Our system of justice does not seek to establish innocence. The presumption of innocence applies to any person accused of a crime. The accused is not required or expected to prove their innocence.

The defence lawyer is essential to the protection of individual rights. The defence lawyer works under strict ethical rules that balance their duty to their client with their duty to the court. By challenging arbitrary actions and testing the evidence called by the prosecution, they support a fair trial. Their work prevents miscarriages of justice that might otherwise occur.

Judges are independent and provide impartial and expert application of the law. In the case of trial by judge and jury, the judge is responsible for ensuring a fair trial, including any rulings on procedure and the law, while the jury is required to make factual determinations. Those findings of fact are made on the basis of evidence presented at the trial. Only that evidence which satisfies rules designed to ensure its relevance and reliability will be admitted.

But no one is infallible, and what if a judge or jury do err? Then we look to our Courts of Appeal, to whom the Crown or defence may appeal. The Courts of Appeal, sitting as panels of experienced justices, are available to review trials and court decisions to determine if any serious error has occurred and, if so, to provide an appropriate remedy, including retrial.

The final safeguard is the open courts principle. Our courts are open to the public. The press reports on court proceedings. This transparency and public scrutiny should reassure the public that justice is not only done, but seen to be done.

Neil Robertson, Q.C., is president of the Saskatchewan Branch of the Canadian Bar Association.