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| Kyla Lee |
And while the conversation on all major media outlets focused around the progress of the manhunt, the families of the victims, and the backgrounds of the two young men on the run, there was a more important conversation that needed to be had. That is about the presumption of innocence.
One of the most important aspects of the justice system is the presumption of innocence. And this has to be safely guarded at all stages of a trial, if and until conviction, in order to prevent the trier of fact from coming to a predetermined conclusion about the evidence or about the guilt of the offenders and compromising trial fairness.
The way the story caught the public’s attention, however, risked compromising that. The story crafted on television, social media and the radio was of a young man, radicalized as a neo-Nazi, who lied to his father and left on a killing spree with a friend. Photographs of one of the accused were released, showing him in Nazi regalia with Nazi paraphernalia. Still images from security footage sprawled across the front pages of newspapers and news websites, showing two men with slight smiles and seemingly dead eyes.
But what if this case had ended differently?
What if the men had instead been apprehended and forced to stand trial?
The reality is that the narrative crafted for the public, displayed and told worldwide, would have had far-reaching implications on trial fairness. It is unlikely that a potential juror would not have seen the news story and would have potentially formed their own conclusions about the case.
The narrative set up in the news showed the victims as gentle-hearted people: a young couple in love and a UBC professor well-liked by his students. There was a hero and a villain.
These are the types of stories lawyers love to tell juries. But this time, the storytelling was not done by the Crown but by the media.
Given the seriousness of the offences, both men would have had the right to a trial by jury. And if they could not receive a fair trial by jury, because of the publicly crafted narrative, they may have grounds for the charges to be stayed due to the inability to have a fair trial.
And so while the presumption of innocence is important for those accused of crimes, it is also an important protection for the public against the potential that guilty people go free in avoidable ways.
Is it beyond the realm of imagination that this case is not unlike S.E. Hinton’s book The Outsiders? There, two young outcasts were accused of a crime when they acted in self-defence. They went on the run, out of fear that their story would not be believed.
Is it wrong to say what if that is what happened here? The narrative sold to the public of killer Nazi boys would only engender more fear of disbelief and pushed them further on the run.
The failure, in that hypothetical, to remember the presumption of innocence, may be directly related to the deaths of two young and innocent men. That would be shameful and tragic.
Imagine, too, the possibility that these men did not commit the murders in question. If that is the case, the media attention and public narrative created has now set up the perfect defence for the real killer. Even if that person is ever identified, there is a huge record pointing to a legitimate suspect that demanded more police resources than have been expended on a single police investigation in a very long time. A perfect scapegoat.
The presumption of innocence protects those accused of crimes and protects the public from acquittals of guilty people that otherwise would not happen.
And so as we walk away from this story wondering about whether we will ever have answers in the case, we should also spend some time meditating on our own assumptions, how quickly we come to judge and how important it is to remember the presumption of innocence is there for everyone’s benefit.
Kyla Lee is a criminal lawyer and partner at Acumen Law Corporation in Vancouver. Her practice focuses on impaired driving. She is the host of a podcast, Driving Law, and a weekly video series Cases That Should Have Gone to the Supreme Court of Canada, But Didn’t! She is called to the bar in Yukon and British Columbia.
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