Trust in Canada’s crim­i­nal jus­tice sys­tem

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

Saskatoon StarPhoenix - - OPINION -

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.

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