Danger: Short-cuts to (in)justice

“Not only must justice be done; it must also be seen to be done.” This is one of the most important maxims in the legal realm.

Unfortunately, it has been misinterpreted and misapplied far too often throughout our history.

This saying does not mean that a “show trial”—with what essentially amounts to a predetermined outcome—will suffice.

Nor does it mean that justice should be easy and painless to watch.

We must guard against the erosion of our rights and the elimination of the many built-in checks and balances in our system. Ease, efficiency, and expediency may be laudable goals in some pursuits but these should never constitute our primary objectives vis-à-vis reforming the criminal justice system.

You may have heard that many police officers get paid quite well, especially when overtime is factored in (http://news.nationalpost.com/news/more-than-half-of-toronto-police-employees-are-on-the-sunshine-list-earning-in-excess-of-100k). In light of budgetary constraints and public pressure to bring costs under control, governments and police forces are pushing for shortcuts to be introduced to the criminal justice system with a view to reducing the amount of time officers spend in court (either on work time or on paid overtime).

In fact, some people would like to see fines imposed and collected in order to generate revenue that could be used in the budget to fund the operation of courts, police departments, or even for the broader purpose of pulling a cash-strapped government out of a pit of despair (http://www.cbc.ca/news/canada/newfoundland-labrador/public-suggestions-improving-newfoundland-labrador-finances-1.3410224). Aside from the obvious “blood-from-a-stone” issue, what could possibly go wrong with using police—and the criminal justice system as a whole—for the purpose of revenue generation? (Oh, wait: http://www.cnn.com/2015/03/06/us/ferguson-missouri-racism-tickets-fines/)

In an effort to cut costs, the Government of Manitoba, for instance, is making some significant changes:

[A] portion of the Provincial Offences Act will make it so officers will no longer have to appear in court in person, thereby eliminating the chance for someone contesting a ticket to question the officer that issued it. Instead, officers will be permitted to submit paperwork documenting how they issued the ticket.” (http://www.winnipegsun.com/2016/02/06/ticket-expert-radar-rodney-says-legislation-unfair-to-motorists)

As Professor David Milward of the University of Manitoba’s Faculty of Law points out, this approach is highly problematic and ripe for a Charter challenge:

“Very often you need the police officer to substantiate the charge… The defence has to have a fair opportunity to try and show it up. There’s also a Charter right to full answer and defence to contest a Crown’s evidence. But here it’s like you’re not giving the defence that opportunity. I think this potentially introduces a medicine worse than the disease.” (http://www.winnipegsun.com/2016/02/06/ticket-expert-radar-rodney-says-legislation-unfair-to-motorists)

But hey, where is the harm? It’s just a speeding ticket, right? It’s a quasi-criminal offence, not an actual criminal offence. I mean, we’ve already made traffic offences (and other quasi-criminal offences) much easier to prosecute by categorizing them as strict liability offences, which essentially means that the Crown only has to do about half of its normal work.

With a typical criminal offence the Crown must prove both actus reus (the criminal act) and mens rea (the criminal intent), since “actus reus non facit reum nisi mens sit rea” (“an act does not make a defendant guilty without a guilty mind”) (http://www.duhaime.org/LegalDictionary/A/ActusReusNonFacitReumNisiMensSitRea.aspx).

Under the strict liability framework, however, the Crown effectively gets a “free pass” on having to prove mens rea; proof that the offending act was committed is sufficient to ground a finding of guilt (unless the accused can raise a very specific type of defence). And now, the Government of Manitoba is hoping to limit the defences available to an accused in relation to the actus reus allegations. Why? Because it can be expensive, time consuming, and—quite frankly—kind of a pain to “jump through the hoops” of having to prove an accused’s guilt beyond a reasonable doubt. After all, most of society seems to think that if someone is charged with an offence, then he or she must have done it. (This perspective is unlikely to persist where individuals have been wrongfully accused of committing an offence…) Let’s just get to the “if-you-do-the-crime, you-do-the-time” part of this, shall we? Time to face the music, right?

The problem, of course, is that while most people alleging that an offence has taken place are likely trustworthy, honest, well-intentioned people, we cannot take that standing for granted. (See, for example: http://www.thestar.com/news/crime/2016/01/28/toronto-police-officers-charged-with-obstruction-of-justice-perjury.html.)

This brings me to the message from protesters standing outside the courthouse where the Jian Ghomeshi trial is taking place. After the accusations started to come out against Ghomeshi in 2014, he was vilified in the press; as the allegations piled up, the media—along with popular opinion in general—had clearly decided that he was guilty. The trial itself (in light of Ghomeshi’s not-guilty pleas) was viewed as a mere formality, making it just a matter of time until he was sentenced for his crimes.

But the criminal justice system—at least at this point in time—thankfully does not operate in such a cavalier fashion.

Ghomeshi’s lawyer, Marie Henein, is doing what would seem to be an incredibly effective job of attempting to raise doubts about the complainants’ credibility. Sure, Henein is focusing on details surrounding the allegations rather than addressing the specifics of the allegations themselves. But, as the saying goes, “the devil is in the details.”

If we, as a society, were to do as protesters and those unaccustomed to “seeing justice be done” want us to do and preclude defence counsel from asking questions that target a witness’ credibility, we risk undermining the very bases of our criminal justice system: the rule of law, the right to a fair trial, and the presumption of innocence.

In a criminal trial, the Crown must prove guilt beyond a reasonable doubt. This is not the civil arena, where showing that someone is probably liable (that is, on a balance of probabilities) is sufficient to ground a finding against him/her.


As a society, we cannot lower our high standards for the sake of ease, efficiency, or expediency. We must appreciate and recognize that justice is not meant to be cheap, quick, or easy. We must resist the temptation to take shortcuts on the road to justice.

If you don’t believe me, please bear in mind that Judge Dredd was set in a dystopian—rather than a utopian—future.


About Brandon Trask

Brandon Trask is a regular blog contributor and former colleague of Daniel Murphy and currently a doctoral student at the University of Toronto’s Faculty of Law. He was formerly a Crown Attorney in Newfoundland and Labrador. Brandon holds law degrees from the University of Manitoba and the University of Toronto.