Justice in the Eye of the Beholder

Over at Defending People, in a post entitled, The Hunting of Justice (An Agony in Eight Fits) Mark W. Bennett responds to John Kindley’s post on the issue of the role of criminal defense lawyers in the “criminal justice system”.  I use the phrase parenthetically; since in my view, “justice, like beauty, is in the eye of the beholder and my eye beholds an ugly truth”. 
I have blawged about so-called “access to justice” previously:Access to Injustice: Pro Se Litigants, Civil Justice Reform and the Economics of Law. Lawrence Slocum frames the idea of procedural justice this way:

The Participation Principle requires that the arrangements for the resolution of civil disputes be structured to provide each interested party with a right to adequate participation. The Accuracy Principle requires that the arrangements for the resolution of civil disputes should be structured so as to maximize the chances of achieving the legally correct outcome in each proceeding. Together, the two principles provide guidance where guidance is needed, both for the architects of procedural design and reform and for judges who apply general procedural rules to particular cases. (Lawrence B. Solum, “Procedural Justice”. (2004) 78 S. Cal. L. Rev. 181 Available at SSRN: http://ssrn.com/abstract=636721)

Admittedly, civil justice is secondary to criminal justice. On the loss of freedom ladder, going bankrupt is a rung below going to prison.  While civil litigants are (theoretically) entitled to (equal) access to the courts, criminal defendants are forced conscripts into the justice system.
Within this context, there is an interesting report in today’s National Post, “Acquittals account for only 3% of cases: data“,where Shannon Kari writes,

An outright acquittal in a criminal trial in Canada is a lot less common than most people might think.

A finding of “not guilty” was the result in just more than 3% of the more than 390,000 criminal cases in the country in 2008-2009, according to data recently released by Statistics Canada.

If Quebec is excluded from the totals the percentage drops to a little more than 1% — just 3,570 people acquitted in the rest of the country last year. 

 Sure enough, there are caveats:

The data contained in the annual Adult Criminal Court Statistics needs to be looked at with some context though, say those involved in the criminal justice system.

For example, it does not mean that everyone charged with a criminal offence is eventually found guilty.

The Statistics Canada report shows that one in three cases across the country is withdrawn by the Crown without any criminal conviction because of a lack of evidence. Ontario is even higher than the national average, with more than 40% of cases withdrawn before they get to trial.
It is the remaining two-thirds of cases in which the prosecution does not withdraw, that a finding of guilt is registered nearly 99% of the time, except in Quebec.
In that province, more than 13% of total cases ended with an acquittal.

Aside from issues of characterization (i.e. withdrawals entered as acquittals), and more sympathetic juries in Quebec, it appears that “justice” is truly in the eye of the beholder. An outright acquittal is not the only datum stake in the excavation for truth:

In looking at the percentage of acquittals, it is important to match that figure up against the number of contested trials, said Paul Burstein, president of the Ontario Criminal Lawyers Association.

In about 95% of cases in which the Crown proceeds to trial, there is a plea bargain. “Guilty to a lesser offence may engage many of the same important public interests as an acquittal,” Mr. Burstein said. “It does not mean police got it right,” he said.

As a result, the 964 acquittals registered in Ontario last year after contested trials, may be an acquittal rate closer to about 20%, suggested Mr. Burstein.

“That is nearly 1,000 people who might have been wrongfully convicted were it not for the checks and balances in our system,” he noted.

If the acquittal rate is really closer to about 20%, as Burstein suggests, then this means that 80% of the cases resulted in convictions where the Crown met the burden of proof beyond a reasonable doubt. No matter how you do the math, the odds remain heavily in the government’s favour. Whether these figures reflect “justice”, however defined, is for the reader to decide.

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