“Prejudice, a dirty word, and faith, a clean one, have something in common: they both begin where reason ends.”
Today’s post explores a fundamental principle of Canada’s criminal justice system: every person on trial must be presumed innocent until proven guilty beyond a reasonable doubt. This determination must be “logically connected to the evidence” and not based on “sympathy or prejudice.” For this reason, the defendant in a criminal trial is afforded additional rights to protect her innocence—unless and until the Crown prosecutor convinces a judge or jury beyond a reasonable doubt that enough evidence justifies a guilty verdict.
This is contrasted with the civil justice system. In civil court both parties’ rights are considered equally and the result is weighed on a balance of probabilities. In the criminal system the scales of justice are adjusted to reflect the state’s relative power to impose criminal sanction and the individual’s risk of loss of liberty and the stigma associated with a criminal conviction. The bottom line is that our society values the individual’s freedom so highly that it is better to let a guilty person free than to incarcerate an innocent person.
In Harper Lee’s book To Kill a Mockingbird, lawyer Atticus Finch defends the wrongfully accused Tom Robinson. Mr. Robinson’s guilt is predetermined by the townsfolk and Mr. Finch faces an uphill battle to persuade the jury of his innocence. Before trial, Mr. Robinson’s reputation is already muddied.
In high profile criminal cases, the court of public opinion can injure the defendant’s reputation before guilt is decided. Recently in Alberta, Travis Vader was found guilty of manslaughter. The judge found that the evidence did not support a first-degree murder conviction but it did meet the lower threshold of a manslaughter conviction. In Ontario, Jian Ghomeshi was found not guilty of sexual assault. The evidence against the accused was not reliable enough to support a conviction.
Even before their days in court, both accused were unofficially tried in the court of public opinion and, like wildfire, guilty verdicts spread across social media. When someone is tried for a crime and found not guilty, ideally her life should return to normal, having been acquitted of a crime. This is usually true. Although our courts are almost always open to the public, most trials come and go without much public attention.
However, when a highly profiled case is before the courts, the accused is tried by thousands of opinions—most of which are not framed in an understanding of criminal law. Trial-by-social-media multiplies the impact on the reputation of the person facing trial. Publicizing the accused’s name and face changes her life forever. An accused person who is acquitted will never be truly innocent in the public’s eye when there is a highly publicized case, and a convicted accused in such cases carries the social burden heavier than does a non-publicized accused.
The lesson from To Kill a Mockingbird is in Atticus Finch’s influence on his children and, therefore, on the reader. Logic and equality is better than prejudice and bias. Even those accused of the worst crimes deserve “to get a square deal [in the] courtroom.”
 Harper Lee, Go Set a Watchman (US: HarperCollins, 2015).
 R v Lifchus,  3 SCR 320, 150 DLR (4th) 733, at para 36.
 Harper Lee, To Kill a Mockingbird (Philadelphia: Lippincott, 1960) [Mockingbird].
 R v Vader, 2016 ABQB 625, 2016 CarswellAlta 2163.
 R v Ghomeshi, 2016 ONCJ 155, 2016 CarswellOnt 4246.
 Mockingbird, supra note 3.