Why we need this law to ensure all the guarantees necessary for our de

Machjo · August 30, 2015

Why we need this law to ensure all the guarantees necessary for our defence.

The Universal Declaration of Human Rights, Article 11 (1) states:

"Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence."

The Canadian Charter of Rights and Freedoms, Section 11 (d) states:

"Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal."

All police officers in Canada (which would include those of CBSA and other similar special departments) should be legally obligated to offer a suspect to collect fingerprint, DNA, blood, photographic, electronic, or other evidence and then collect such proof for processing at the suspect's request or explain in writing to be presented in a public trial why he chose not to do so prior to detention in the case of a non-violent offence and immediately after detention in the case of a violent offence.

I understand that since the state is obligated to prove his guilt, its failing to collect such proof would only make it more difficult for it to do so, thus increasing the likelihood of his being legally found not guilty. That's fine from a strictly legal standpoint, but what about the court of public opinion or of the accused's family and friends which can impose a punishment of its own?

For this reason, regardless of there being no need to prove an accused's innocence for legal reasons as long as guilt can't be reasonably proved, the police should be obligated to give an accused the chance to eliminate suspicion in the court of people's minds too. A person should even be allowed to sue the police for failing to offer to collect such proof and then collecting it or explaining in writing why it did not do so. The police should consider not only the legal ramifications of any charge made against a person but also the social ramifications beyond the law.

In principle, the police is already required to collect evidence that could eliminate a person as a suspect, but its failing to do so imposes no consequence on the police beyond its inability to prove a person's guilt at a public trial. What I am proposing is that failing to offer to collect evidence that the suspect might want collected without a good reason to not do so would allow a detainee to then sue the police for not having given him a chance to prove his innocence.

To take an example:

A woman goes to visit a friend out of concern that her friend might suffer gambling addiction and worries that something is not right. The police arrive and accuse all of the women in the house of working in Canada as sex workers without proper authorization and detain them for deportation.

We can imagine that had the police offered to collect proof at the women's request, the innocent party would ask the police to collect DNA from any used condom, pillowcase, or bed sheet that might be found in any room, fingerprints from unopened condom wrappers or boxes and money in the house, a written statement from any accused client in the house, and her cell phone and e-mail record.

Because the police neither collected nor offered to collect evidence which could have conclusively proved her innocence beyond reasonable doubt, she is found not guilty at a hearing due to lack of evidence but is unable to prove her innocence. The legal consequence of being found not guilty due to lack of evidence is the same as that of being found innocent, but the social consequence might not be. Due to her inability to prove her innocence due to lack of evidence, her fiancé, aware of the charge made against her, is left wondering about her.

I'm sure we can imagine many other examples in which a charge of which we can not prove our innocence could have social consequences beyond the law. Imagine being unable to prove your innocence of a charge of sexual abuse of a child, of rape, or other such charges. I know that for me, to be found not guilty due to lack of evidence would certainly not be enough; and given how proving innocence is already more difficult to do than proving guilt in the best of circumstances, imagine if the police does not even collect the evidence that could help us to do so.

What are your thoughts on this? Should the police be legally obligated to offer to collect any specific evidence at a suspect's request and then collect it as requested or explain in writing why they did not collect it, with the suspect being able to sue the police for having failed to do so should he be found not guilty due to lack of evidence but unable to prove his innocence as a result of the police's failure to have offered to collect evidence at his request?

TimG · August 30, 2015

I understand that since the state is obligated to prove his guilt, its failing to collect such proof would only make it more difficult for it to do so, thus increasing the likelihood of his being legally found not guilty. That's fine from a strictly legal standpoint, but what about the court of public opinion or of the accused's family and friends which can impose a punishment of its own?

This is a general problem that is not going to be fixed by your proposal.

What are your thoughts on this? Should the police be legally obligated to offer to collect any specific evidence at a suspect's request and then collect it as requested or explain in writing why they did not collect it, with the suspect being able to sue the police for having failed to do so should he be found not guilty due to lack of evidence but unable to prove his innocence as a result of the police's failure to have offered to collect evidence at his request?

You raise an interesting point and I can see how it would prevent the conviction of an innocent in some cases. However, making it a statutory rule would give guilty people a powerful weapon to escape conviction because anyone can fabricate a claim that exonerating evidence existed somewhere the police did not look. If it was a statutory rule then these fabrications would lead to an immediate not guilty verdict. Under the system today the accused can still make that argument and the judge/jury can weigh its plausibility and factor it into the decision on reasonable doubt. Edited August 30, 2015 by TimG

Queenmandy85 · August 30, 2015

I could agree, provided the accused is willing to underwrite the cost of collecting and processing the evidence. Her lawyer would collect evidence on her behalf as it stands now. Fingerprints from the items you listed would be useless. Money would have blends of hundreds of prints, lifting prints off items such as condom wrappers is virtually impossible. DNA testing is very expensive and takes a long time. Ideally, cost should not enter into it, but in the real world, the taxpayers would balk at the massive increase in police budgets that you are calling for.

Machjo · September 1, 2015

I believe that such a law could even save money.

The first reason for this is psychological. Why would the guilty accept a police officer's offer to collect more incriminating evidence? Should he turn down the officer's offer, the officer would have to note it down and the accused could then be questioned about it in court. Should the officer himself ask why not, such a simple question aimed at eliminating him as a suspect could lead to him confessing to the offence, thus making a trial far less expensive and the guilty easier to prosecute.

Inversely, should the accused accept the offer with enthusiasm, the police who initially believed him to be guilty might start to wonder if it's a case of the suspect being at the wrong place at the wrong time, thus causing them to ask further questions before determining whether it's worth arresting and detaining him given that he'll obviously put up an expensive fight in court, the prosecution's side at taxpayers' expense.

If it's serious enough (e.g. child sex abuse, human trafficking, etc.) they might decide that they can't afford to ignore him but not wanting to charge an innocent man for such a heinous crime, they decide to call his possible bluff figuring that the victim is worth the money to ensure a conviction without which he'd likely be found not guilty due to lack of evidence anyway.

If it's not deemed serious enough (e.g. prostitution), they might decide to let her go but nail her the next day in an easier and less expensive manner with an undercover cop with a hidden video camera. If she doesn't take the bait the next day, maybe the cops were wrong about her after all.

In this way, the police would better allocate its resources towards more serious offences, the guilty will be more likely to be found guilty, and the innocent will be less likely to be arrested in the first place, thus saving money on court cases.