Tracing The Presumption of Innocence Through A Survey of Supreme Court of Canada Cases

In yesterday’s blog, the presumption of innocence, as a legal principle, was traced from its seemingly innocuous origins as a rule of evidence in civil cases to the status of a fundamental, constitutionally entrenched, principle of the criminal law. Today, I will detail how the presumption of innocence took on such elevated standing through a brief survey of early Charter and pre-Charter Supreme Court of Canada cases.

On a quick review of the Supreme Court of Canada cases discussing the presumption of innocence, it is the 1985 SCC reference case of Re B.C. Motor Vehicle Act, which explicitly crystallizes our present concept of the presumption of innocence as a fundamental principle of the criminal law and as a fundamental societal value. Justice Lamer described the presumption as not just a procedural tool but also as a substantive concept which “has both a societal and an individual aspect and is clearly fundamental; to our justice system.” The Charter’s influence in protecting such an expansive view of the presumption, thereby making the principle a right, is evident in other early post-Charter cases on the issue, such as the earlier case of Dubois in 1985, Oakes in 1986, and Whyte in 1988.

As an aside, it is no surprise that it is Justice Lamer who gives the presumption of innocence such an expansive and meaningful definition. Prior to his judicial appointments, Antonio Lamer was the Vice-Chairman of the Law Reform Commission of Canada (LRCC) in 1971 and Chairman thereof in April 1976 at a time when the LRCC was actively involved in shaping the jurisprudential landscape of the law.

In terms of pre-Charter, although Justice Estey, dissenting in the entrapment case of Amato in 1982, called the presumption of innocence a “fundamental doctrine,” there is little of this nomenclature in earlier cases. For example, in the 1969 Lampard case, the presumption of innocence is merely called “rebuttal,” hardly a powerful descriptor of the “cornerstone” of criminal law. Other pre-Amato cases characterize the presumption in the same manner: as a presumption, which ceases if the Crown can prove guilt beyond a reasonable doubt. Even in some earlier cases, the presumption is referred to as the “general presumption of innocence,” again a thoroughly unsatisfactory way of describing a constitutionally entrenched right. Interestingly, in all of these cases, the presumption is an adjunct to the burden of proof.

Finally, consistent with Fletcher’s theory of the origins of the presumption in English civil law, is the 1883 SCC case of McRae v. White. The case was one of unjust and fraudulent preference in an insolvency action. Although a civil suit, the case does have shades of fraudulent and therefore criminal intention, but the result is based upon a failure of the plaintiff to satisfy the onus as required by the Insolvency Act of 1875.

In other words, the plaintiff could not rebut the negative: that a man is presumed to fulfill his legal obligations. In this case, the defendant, in good faith, took on debt with the honest belief he would fulfill his obligations. The plaintiff was unable to establish otherwise. Admittedly, there is no mention of the actual phrase “presumption of innocence,” but the headline of the case reads “Insolvent Act of 1875—Unjust preference—Fraudulent preference—Presumption of innocence.”

Clearly, the presumption of innocence has matured into a much more powerful concept than originally imagined. This is so, at least in the legal arena. In my final posting on the issue, tomorrow I will discuss the international development of the presumption with an additional look at the historical non-legal usage of the concept.

The Presumption of Innocence: The Making of a Principle

The presumption of innocence is at the heart of our criminal justice system. As a cornerstone of criminal law principles, the presumption of innocence guarantees a fair trial for all. By ensuring only those individuals who are found guilty will be punished, it protects the vulnerable individual from the awesome powers of the State. It is indeed a fundamental principle, constitutionally entrenched in our Charter, and an integral part of our rule of law.

As important as this principle is to our concept of justice, the presumption of innocence has become much more than a legal tool; it has become part of the fabric of our society. Today, every citizen is aware of the presumption of innocence in a criminal case. This principle has transcended the legal arena to become one of our society’s fundamental values. It is not only a value understood by all but it is part of our culture. It can be found in journalism, literature, movies, and television.

Yet, historically, according to academic scholars, the presumption of innocence was not a fundamental principle but a general rule of evidence used in civil cases. In a series of articles, George Fletcher, a well-known scholar now Cardoza Professor of Jurisprudence at Columbia Law School, maintained the presumption of innocence did not become part of the common law nomenclature until the mid-1800s.

In fact, the concept of the presumption arose from a series of civil cases in the early 1800s wherein the court applied the common sense evidentiary rule that a man (yes, this is the early 19th century) is presumed to fulfill his legal obligations. Thus, if a plaintiff is alleging the negative situation, that the defendant did not fulfill his legal obligation, then the plaintiff must prove otherwise. Only later, did this evidentiary rule apply to criminal case and then became, what we call, the presumption of innocence.

According to Fletcher, even the core concept of the burden of proof in a criminal case, which requires the Crown to prove guilt beyond a reasonable doubt developed separately from the presumption of innocence and only later, in the 1850s, did these two principles become connected. In the Commonwealth, the ultimate articulation of this connection is found in every first year law student's curriculum: the House of Lords case of Woolmington v. D.P.P from 1935. In this seminal case, Lord Sankey famously describes the presumption of innocence and the burden of proof in a criminal case, which is to prove the crime beyond a reasonable doubt, as the "golden thread...woven deep into the fabric of our law."

In the Oakes case, Chief Justice Dickson waxed eloquent on this dual concept and found the presumption of innocence essential to society as it "confirms our faith in humankind; it reflects our belief that individuals are decent and law‑abiding members of the community until proven otherwise." It was indeed the Charter which elevated and crystallized the presumption of innocence as the fundamental concept of our criminal justice system.

The Art of Taking (And Giving) Art

This morning a crime was committed in Greece. It was a theft, which by Canadian standards is not a shocking crime. Nonetheless, the incident made international headlines. Why the notoriety? The theft was no run of the mill affair, but a sophisticated art theft from the National Art Gallery in Athens. Three paintings, of immense historical and intrinsic value, were taken: Female Head painted by Pablo Picasso and donated by him in commemoration of Greece’s role in World War II, Piet Mondrian’s Mill, and a 16^th century sketch by Caccia.

The theft was reminiscent of many such art heists, such as the 1911 taking of the Mona Lisa from the Louvre and the infamous September 4, 1972 theft of 18 paintings and other artifacts from the Montreal Museum of Fine Arts. Although the recovery of such stolen art is low, the Mona Lisa was returned two years after the fact. Sadly, only one of the 128 paintings taken from the Montreal museum has been recovered to date. It seems that at least in the Art world, crime does pay.

Theft for profit is one matter but objects taken during wartime is another matter of concern. The recovery of art works plundered by the Nazis is still ongoing. George Clooney is presently working on a dramatization of the Monuments Men, a group of art experts who assisted in locating and identifying stolen artwork found by the Allied operation after the end of the war.

Such recoveries can be complicated by the difficulty in tracing the art back to the original owners. Even if the artwork is traceable, many of the new owners dispute the return on the basis they purchased the art in good faith without knowledge the item was stolen. The result is lengthy litigation oftentimes involving numerous parties in an array of international courts. 

In 1998, The Unites States government together with the United States Memorial Holocaust Museum sponsored an international conference on Holocaust-era assets. The conference heard from a number of scholars working in the area of stolen artifacts and art resulting in the creation of guidelines to assist in the return of the objects. The United States created a searchable database to assist museums in detecting the stolen items. However, a recent follow-up study has shown slow progress in identifying the suspect objects.

There are times, however, when art can be “legally” taken as in the case of an Australian hotelier who, as part of a grand marketing scheme, is counting on their guests to commit, well, grand larceny. This “contest” allows any registered guest, who can successfully steal the Banksy art piece from the hotel wall, can keep it.

Bansky, of course, turns the question of art theft on its head when in 2004, he went into the Louvre and hung his version of the Mona Lisa. Which leaves us to ponder this question: is it illegal to bring your own art into an art museum or is it just another form of philanthropy?

Update on Monday, January 9, 2012 at 5:12PM by Lisa A. Silver

Another question: is it theft if a Banksy graffiti is taken off a public wall?

The Infinite Lists of The Law

We are a culture of lists. We list both the animate and the inanimate as we create lists of items, dates, times, and even dreams. categorizing and prioritizing is a must in our busy world where lists order to the chaos surrounding us. Even when faced with a new year, we make a list of resolutions, which serve to galvanize our dreams into reality. professionally, we would be labeled unorganized and inefficient if we did not abide by our daily to do lists. 

This penchant for cataloguing our desires and possessions is the subject of Umberto Eco's beautifully illustrated book The Infinity of Lists. Eco's premise is basic and primal: we live to make lists for an infinite number of reasons. Some lists are self-referential and enclosed such as a list of Canadian capital cities, while other lists find meaning through personal reference points found only outside of the list such as the list of holocaust victims at Yad Vashem. Still others are infinite in scope and contain an unspoken etcetera such as visualized in Pannini'spicture galleries.

Eco's theme can be applied to any subject area; not only art catalogues and literary warrior lists, but also in the legal arena. Every judgment contains a list of decisions relied upon, every civil discovery involves a list of pre-determined questions, every divorce requires a list of financial documents to be exchanged. There are court lists, which in turn may require jury lists, and then ultimately, witness lists and exhibit lists. 

Laws themselves are really just a list of dos and don'ts. Indeed our Criminal Code is merely a list of sections, which currently happen to number a solid 849. However, that number too is misleading and not as predictable as first imagined. Like accordion folds, many of the sections contain further divisions and are actually a dizzying array of laws.

For example, the search warrant section 487, expands incrementally from section 487.01 to section 487.017 and then further divides from section 487.02 to section 487.092, where it segues into section 487.1 to section 487.3, until it finally rests at section 488. Thus, s.487 to s.488 becomes a maze of laws as some 33 sections span the divide between the two. Found in this span are the DNA warrant sections, showing that what may seem an absurd hodgepodge list is actually crucial and important powers and procedures in our criminal law.

Lists are important and certainly in the legal world, help us make sense of what can be a confusing process. The power of list making should, therefore, not be underestimated, and neither should we dismiss the infinite possibilities of a list.

Freedom of Expression: Poems, Posters, And Billboards As A Form of Complaint

In previous postings, I discussed the Occupy movement's "Tent Cities" as a form of political protest with expressive content and therefore protected expression under s.2 of the Charter. Once Charter protected, the analysis then shifts to the s.1 limitation analysis to determine whether or not a restriction of that expression is justified in a free and democratic society.

Political protest, as expression, is readily accepted as worthy of protection. The difficulty, however, is when we look to more obscure kinds of expressive protest, such as a personal complaint. This was the case in a recent decision by the Ontario Court of Appeal in R. v. Jeffers.

Mr. Jeffers was convicted of mischief and counselling murder as a result of distributing and plastering posters across Toronto, which referred to his dire financial situation caused by the bank's re-possession of his home. In one poster, the basis for his convictions, Jeffers reproduced a photograph of a city councillor with the councillor's name and the word "murder" as seen below:

Murder Help

Councillor Thompson Jeffers

Help Black 647-xxx-4476
We Black

Mr. Jeffers, who was not originally from Canada, had a grade 5 education. According to Mr. Jeffers, the posters were a cry for help and were not intended to harm the city councillor, who had helped Mr. Jeffers in the past. The councillor did not testify at trial.

In quashing the convictions and substituting acquittals, the Court of Appeal, applying the legal principles required to prove the offences, referred to postering as "an effective and inexpensive means of communicative expression" and therefore "criminalizing this kind of conduct is not in society's best interest." The posters, albeit crude and childish, were a public airing of an individual's frustration with a plea for help from the City and were, in light of all of the circumstances, not criminal.

The Jeffers case made reference to another earlier Ontario Court of Appeal case, R. v. Batista, wherein the accused wrote poems and posted the verses throughout a Mississauga neighbourhood. The poems were about the accused's city councillor, and as with Jeffers's posters, not the most erudite literature, but were found not criminal in nature. A sample of the impugned section of the poem is reproduced below:

Now this bad driver that

WE only know as Pat Saito

who run away from thataccident

site is going to think twice

before backing up and looking at

pot holes instead of doing

Her job

We are going to dig a pot hole

about six feet long and 3 feet wide

and five feet deep to hide

her body and God will take care

of Her Soul, but We can not

forgive her for doing nothing

She can keep running

at a good pace but

We will make sure

that She is in HEAVEN

and out of the Race.

In this case, the Court considered the elements of the offence of threaten death in the context of freedom of expression under s. 2 (b) of the Charter and the vital role political satire, albeit "amateurish, foolish, and offensive," plays in a democracy. Indeed, the Court found:

The poem’s purpose of denigrating the elected councillor’s level of job commitment or competence provides important context for a consideration of whether the impugned stanzas of the poem constitute a threat. All citizens are entitled to freedom of expression in the political forum, including those whose language skills are limited. While it was unnecessary for the trial judge to engage in the in-depth s. 2(b) analysis urged upon him by trial counsel, it was necessary to consider the poem as political commentary before determining whether it constituted a threat at law.

Of course, freedom of expression is no stranger to signage as a form of complaint and grievance. In the 2002 Supreme Court of Canada Guignard case, a billboard erected on Guignard's building showing dissatisfaction with an insurance company, was protected expression under the Charter and the municipal by-law restricting that right was found to be unconstitutional.

The sign, as a form of commercial expression, was also a form of "counter-advertising" wherein a consumer exercised his or her right to show dissatisfaction with a product with the additional benefit of forewarning other consumers. This expression of complaint or dissatisfaction, not unlike the complaints found in Jeffers and Batista, "is a form of expression of opinion that has an important effect on the social and economic life of a society."

The Jeffers and Batista cases are yet another example of the Courts using Charter values to interpret their findings. Thus, the Charter colours decisions with broad strokes without the rigidity of a direct Charter analysis. This subtle use of the Charter is the future of constitutional law as Charter values incrementally change our laws to make them more robust and relevant to society.