Here are a few reasons that is the case:
The cost of defending yourself in a criminal case is prohibitive for almost everyone. Even a relatively minor criminal charge can cost $50 to $75,000 in legal fees. A major charge like the one I faced runs into hundreds of thousands of dollars. Only a tiny number of Canadians have that kind of money. Legal aid is available only if you are basically destitute. People end up selling or mortgaging their houses, or cashing in all their life savings, but the average net wealth of Canadian households even in the highest 20 per cent was less than $100,000. The vast majority of people just cannot afford a full defence.
Trials are slow
One reason legal costs are so high is that getting to a trial can take a long time. My case took 22 months from arrest to resolution — without a trial. The Supreme Court has had to set some strict time limits — but even 18 months as the limit to have a trial seems awfully long. During that time, as an accused person, you are paying a lawyer but also may lose your job and income or be jailed for some or all of it. Very likely, you are on bail with very restrictive conditions. For an accused person, pleading guilty and getting it over with may be a better alternative than waiting for a trial, even if you aren’t really guilty.
Cost is the main reason that 90 per cent of criminal cases never go to trial. In quite a few cases, the Crown stays or withdraws the charges, showing that they did not have a good case. More often, the accused person pleads guilty. Of course, if many more people insisted on going to trial, the wait would get much longer; indeed, the whole system would collapse.
As discussed in a previous column, there are many reasons people plead guilty, whether or not they are actually guilty. Quite a few people later found to be wrongfully convicted of charges like murder or manslaughter actually did plead guilty
Reasonable doubt does not prevent conviction
If you do go to trial, the standard of conviction is supposed to be “beyond a reasonable doubt,” but in many cases, that is not the actual standard applied. If we really used “beyond a reasonable doubt” there would be far fewer convictions. What we get instead is judges or juries deciding to believe one version of events instead of another — to find one witness credible and another not. But where a decision rests on one person’s word against another, isn’t there always at least some doubt?
In my case, as in many, many others, the judge wrote several times in her decisions that she believed some things she was told but not others, but I know that some of those choices were wrong. How is that “beyond a reasonable doubt?” We now also know that eyewitness testimony is often unreliable and should not be the sole basis for a conviction. Especially, again, because we have so many cases of wrongful conviction in which it turns out that the person nobody believed was actually telling the truth. Many criminal cases appear to be decided more on a balance of probabilities rather than reasonable doubt.
The damage is done
There is another huge problem with the idea of a fair trial. Even having your charges dropped or being acquitted does not remove the damage caused by a criminal charge. To be charged you must be arrested. You will likely spend at least some time in jail — and for many people, this can be weeks or months. You can lose your job and your housing. I met many people who were held in jail for months and then released with charges dropped — one after 22 months of custody. You never get that time back nor do you get any compensation for it.
Your arrest may be publicized — as mine was — by police or the Crown. People tend to believe that if you are arrested, you are probably guilty even though a large proportion of people charged are not convicted. Just the news of your arrest can cause you to lose friends and connections and, quite possibly, your job. All of that happened to me. If a parent, you may face custody issues around your children.
If you are given bail after a charge, you will face strict conditions that could result in criminal charges for doing things that are perfectly legal for other Canadians (such as staying out late) and those charges may be prosecuted even if your original charges are dropped. Your fingerprints will be on record. You may be unable to enter some other countries (notably the United States). You may not be able to pass police record checks or vulnerable person checks. None of that will be corrected even if your arrest turns out to be manifestly unjustified.
The reality is that being arrested, whether convicted or not, can ruin your life.
In many ways, our criminal justice system is something to be admired. There is an effort to be fair and unbiased. But it’s important to recognize that the reality falls far short of our aspirations. Every year hundreds of thousands of Canadians face criminal charges and the prospect of an unfair conviction or even paying a huge price when not convicted. This cannot be an acceptable state of affairs for anyone. We should constantly be looking for ways to reduce that gap.
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 him 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.
Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.