Presumption of innocence | David Dorson

“You hired an expensive lawyer, so you must have done something bad.” Those words were said to me by a colleague that I met during my time on bail — one  example of the many ways in which the presumption of innocence, so cherished in our criminal law and specifically mentioned in the Canadian Charter of Rights and Freedoms, does not really operate in practice.

From the moment I was arrested the assumption of virtually everyone was that I was guilty. Despite our laws and claims, the presumption of guilt, not of innocence, is the norm for people accused of a crime in Canada.

This is so even though huge numbers of people who are arrested and charged are never convicted. Non-conviction happens in about 40 per cent of all criminal charges in Canada — which means for well over 100,000 people every year. There is a high chance that any accused person will not be found guilty. Yet they are presumed guilty from the start, with serious consequences.

The presumption of guilt takes many forms.

In my case and many others, the police issue a press release about the arrest and charges, often including the statement that they think there are more victims. (In my case no victims were ever identified or came forward at all, so this was quite a stretch, but it is standard police practice.) Nowhere do these statements make any suggestion that an accused person might not be guilty.

The presumption of guilt is a major reason that we have a significant, though unknown number of wrongful convictions. Studies of this problem find that the assumption of guilt and “tunnel vision” by police, prosecutors and the public is often a major factor.  

And, as noted in the previous column, the state has huge resources to prosecute, while most accused persons have almost no resources with which to defend themselves even when public statements about them are blatantly false or biased.

Media coverage

Police press releases are a trigger for media coverage, and crime constitutes a giant share of what the media report. Typical reporting is as if anyone arrested is guilty. The charges are all reported, and the accused is named (unlike in Europe). The proviso that “the charges are alleged” and “have not been proven in court” hardly counteracts the overall effect, which strongly implies guilt. 

The worst of media coverage, however, is not the reporting but opinion pieces, which often call for various actions against the person accused, and others “like” him or her, long before anyone knows what the evidence actually is.

If the professional media can be bad, social media are far worse. In any social media coverage of a high-profile arrest the overwhelming majority of comments presume guilt. And this record is permanent; even if charges are dropped, social media accounts of your alleged perfidy remain online forever — usually without the word “alleged.”

Bail

Then there is the matter of bail. Bail conditions are usually set on the assumption you are guilty. If you are accused of, say, a financial crime you will be prohibited from most financial activity. If you are accused of an online crime your access to the Internet will be cut off. You may be put on house arrest, unable to do any of your normal activities. Violating any of these can lead to another criminal charge. And bail conditions can last for months and sometimes years before a case is resolved.

Bail provisions might make sense if a person is guilty, but at the point of bail that is not at all evident. Yet the number of people denied bail and held in jail on remand has increased massively in this country in the last 20 years. If you were really considered innocent, why would there be any bail conditions? And indeed, the Supreme Court has made several findings that courts in Canada are routinely making bail too difficult to get. Yet we hear constant calls to make bail less available.

Other consequences

It isn’t only the police or the media who assume guilt, either. It’s quite common for employers to behave as if someone were guilty from the moment of charges. A charge will often result in suspension from work, with or without pay, or even termination. If you are held in jail on remand, you may lose your job. I was immediately suspended from my job and told I was to have no contact with anyone I used to work with or for — a provision that created significant hardship for others who were left adrift and whom I would have helped if allowed.

Employers may say that they are doing this because of the response from co-workers or customers who don’t want contact with someone accused of a crime. But that just means accepting that those co-workers or clients are also presuming guilt. And for people in sensitive jobs, there is no coming back from the charge; you are fatally tainted in the public mind even if you are never convicted. Again in my case my employer removed all mention of me from their website, and quite a few other organizations with whom I had connections did the same. In one case, an organization kept my work up on their website but removed my name from it. I was “vanished.”

Presumption of guilt also can affect your social connections more broadly. Friends and even family may assume your guilt also — as did my colleague in making the statement at the start of this article. A few close colleagues contacted me, but most never made any effort to hear my account or to ascertain the facts beyond what they read in the media. People who were an important part of my life stopped talking to me. Sadly, this is common for anyone charged with a crime. Even those who support you most may behave as if you were guilty, urging you to get help or change your ways. 

In a couple of days I went from being a person with a busy life, endless requests for my time and skills, and a very extensive social network to a person who was unemployable and a pariah, even scrubbed from the Internet — and all this while I was still officially presumed innocent and while nobody knew anything about the charges against me except what the police put in their press release and what the media speculated about.

The reality is that if you are unfortunate enough to be charged with a crime, you can expect to be treated from the start as if you are guilty. 

David Dorson is the pen name of someone who went through arrest, case disposition, imprisonment and parole in Ontario a few years ago. Law360 Canada has granted anonymity because he offers a unique perspective on a subject that matters deeply to many readers, and revealing the author’s identity would make re-establishment in the community after serving his sentence much more difficult than it already is.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author's firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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