wrongful prosecution and fair trials in canada
Donald Marshall, Jr, wrongfully convicted of Murder in Nova Scotia(Albert Lee/Canadian Press)
A Canadian’s right to a fair trial is one of our most ancient[1] and fundamental of rights. While precious to us all, these rights are particularly cherished by members of Canada’s LGBTQ[2] community who have often been targeted for unfair persecution by the state.[3]
Our legal rights to a fair trial are constitutionally enshrined in Sections 7 through 11 of the Canadian Charter of Rights and Freedoms. Perhaps the most important of these rights can be found in Section 11.
Unfortunately, a “trial by media” occurs in many modern democracies. In such a case, the accused is held up to public scrutiny, while the complainant is shielded in anonymity. Since most accused persons exercise their right to remain silent, the complainant’s story is often the only one told in the media until the trial begins. This challenges the Charter’s guarantee of the presumption of innocence.
While we are rightly concerned by the widespread plague of sexual assault, we need to be careful not to react to it denying anyone their rights to a fair trial, including the right to the presumption of innocence. All too often, we have witnessed the tragic abuse of state power where persons such as Maher Arar and Omar Khadr have been detained and mistreated without a fair trial.
We should also remember that even though our police and prosecutors generally do a good job in protecting the public interest, they are human beings and capable of making mistakes. Canada’s history books are cluttered with tragic cases of wrongful convictions of people like Steven Truscott, David Milgaard, Guy Paul Morin and Donald Marshall Jr.[4]
Too often the criminal justice system targets member of marginalized communities such as the LGBTQ community.
As a result of our concern for fair trials, BHSF will donate one third of any unused funds to a charity that supports wrongfully accused or convicted persons.
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[1] King John was notorious for his arbitrary cruelty to his subjects because he would imprison anyone who displeased him. One of the provisions of the 800 year old Magna Carta that is still in effect in the UK reads: No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land. To no one will we sell, to no one deny or delay right or justice.
[2] Lesbian, Gay, Bisexual, Transsexual, Questioning (or Queer). The term is generally used to denote sexual minorities.
[3] Many date the modern “gay liberation movement” to the Stonewall riots of 1969, when members of the LGBTQ community resisted arrest and prosecution by police for the first time in New York City.
[4] https://www.novascotia.ca/just/marshall_inquiry/_docs/Royal%20Commission%20on%20the%20Donald%20Marshall%20Jr%20Prosecution_findings.pdf