- The Empire Club of Canada Addresses (Toronto, Canada), 24 Jan 1957, p. 181-198
- Bull, Henry H. and Martin, G. Arthur, Speaker
- Media Type
- Item Type
- A debate. Mr. Bull:
The vital importance to the social structure and the body politic of the preservation of human rights in the field of Criminal law. A dispassionate examination of some human rights. The speaker's function to prepare a general background against which "my learned friend" can then present his detailed analysis. The question of Justice, especially when someone sees trial by due process of law jeopardized by pre-trial in the press. A response to the question "What is Justice?" Why the Law is not Justice. A look at English Law and how it has developed throughout the world. The Criminal Code of Canada. The nature of crime as an offence against the public. The rights of the individual injured party prior to and after a prosecution is commenced. Who the State represents. How the principles of Right are preserved. Procedural rules. Rights of the victim. Finding answers in our legal system. The goal of Justice based on Truth.
The importance of our rules of Criminal Procedure. Securing civil liberties: an origin and history. Our fundamental rights under the Anglo Canadian Legal system and where they are to be found. The speaker's fear that any government could by a single act of legislation sweep aside or annul these basic rights. A fear of the fast developing increase in governmental authority with the prevailing emphasis at the present time on the rights of the State. A look at some of the rights of the accused and an indication of those in jeopardy: freedom from arrest except under conditions laid down by law; the right of an accused to know the specific transaction and the legal nature of the offence that he is called upon to meet; the presumption of innocence. Some examples. The right to be tried on an indictment or accusation found by a Grand Jury and to have his guilt or innocence determined by a jury of his peers. The abolishment in most provinces of the Grand Jury. The development of scientific aids and their use in crime detection. The right of the accused not to incriminate himself, and reasons for that rule. Changes in the right of the accused not to answer questions put by the Police. The right to make full answer in defence. The right to give evidence and the fact that it is considered by many eminent Canadian lawyers to be a doubtful privilege. How the right to counsel and to give evidence may be almost valueless. The need for "eternal vigilance" and the suggestion that the rights for which our ancestors struggled so long and hard are worth protecting. A suggestion that crime prevention and control is best achieved by an efficient law enforcement personnel within the existing legal system.
- Date of Original
- 24 Jan 1957
- Language of Item
- Copyright Statement
- The speeches are free of charge but please note that the Empire Club of Canada retains copyright. Neither the speeches themselves nor any part of their content may be used for any purpose other than personal interest or research without the explicit permission of the Empire Club of Canada.
- Empire Club of CanadaEmail
Agency street/mail address
Fairmont Royal York Hotel
100 Front Street West, Floor H
Toronto, ON, M5J 1E3
- Full Text
- "IS THIS JUSTICE?"
A Debate by HENRY H. BULL, Q.C. and G. ARTHUR MARTIN, Q.C.
Thursday, January 24th 1957
CHAIRMAN: The President, Mr. Donald H. Jupp, O.B.E.
MR. JUPP: Today we have a singular pleasure for the Empire Club of Canada in welcoming as our guest speakers two distinguished lawyers from our own city.
Members may well feel that the Empire Club could wait too long to repeat the variation in programme which was so much enjoyed two seasons ago. I refer, of course, to the discussion between Arthur Maloney, Q.C. and Joseph Sedgwick, Q.C., on the question of Capital Punishment. Today the subject to be discussed is I feel eminently suitable for a Club like the Empire Club of Canada, since certainly our support of the Empire is based upon freedom which in turn is based upon justice, and the title is quite simply, "Is this Justice?"
Speaking from the standpoint of the prosecutor, Mr. Henry H. Bull, Q.C., Assistant Crown Attorney for Toronto and the County of York, who has had a long, distinguished and varied career in the criminal trial courts, will put his point of view first. He has achieved an enviable record of brilliant presentation and has a reputation for complete fairness to the accused.
Presenting the views as a defence lawyer we have Mr. G. Arthur Martin, Q.C., equally distinguished. In fact, these two gentlemen who were classmates, frequently find themselves on opposing sides in a courtroom and, needless to say, are firm friends. They are so well known that I won't give any further biographical details. That is hardly necessary before a Toronto audience.
Now, it is my pleasure to call upon Mr. Henry H. Bull to speak first. The intention is that under this heading, "Is this Justice?" the rights of the accused as he faces trial, the use or abuse of confessions, the role of the Judge and Jury are among the topics which may be discussed.
However, we leave these two eminent Queen's Counsel full freedom of choice in presenting their side of the story.
MR. BULL: If, from the introduction which you have just heard or from the advance notices of this meeting, you expect to be entertained by the fireworks of debate between two men who have, by reason of their respective positions in their profession, always been on opposing sides, I fear you will be disappointed.
When my learned friend and I first approached this subject we too thought that might be the case, but it soon became clearly apparent that our thinking flowed in the same channels and that in all conscience we could not maintain the position of opposing counsel, but rather were advocates of the same cause. It is a refreshing experience for us to be for the first time in agreement.
Schopenhauer in his classic work on "The Art of Controversy" demonstrated that the aim of argument is not Truth but Triumph.
There is no place for hollow victory in matters of such vital importance to the social structure and the body politic as the preservation of human rights in the field of Criminal Law. These fundamental principles are accepted by all parties and the only difference that can arise is as to their application to particular circumstances.
As a consequence, we shall endeavour in the brief time which is allotted to us, to engage in a dispassionate examination, albeit from different points of view, of some of these human rights. It will be my function to prepare a general background against which my learned friend can then present his detailed analysis.
"Is this Justice?"
That is the often indignant cry that we hear from the prisoner's dock when he hears the verdict "Guilty". It was the cry which was heard as recently as yesterday when the convicted man received his sentence. He imagines or believes, with indignation feigned or real, that he has been wronged.
"Is this Justice?"
That is the question, full of cynicism, that the disillusioned victim of a crime asks himself as he sees the despoiler of his goods and person walk from the court a free man, due to the technicalities of the law which frustrated the establishing of the truth.
"Is this Justice?"
It is the question which every sober-minded citizen may well ask when he sees trial by due process of law jeopardized by pre-trial in the press in which the passions of a whole community are whipped to a state of vengeful hysteria against the offender or the criminal made the fond object of maudlin sympathy; when the freedom of the press, the champion and the guardian of his most cherished liberty, descends to license.
It is the question which we all may well ask when ways and means are found, and found readily, for every kind of public work except the requisite accommodation for the Courts, without which they cannot properly function to maintain your and every citizen's fundamental rights. What is Justice?
You will not find the answer in Hollywood films nor in television dramas, nor in crime fiction nor in biographies of flamboyant lawyers. Justice, like freedom, is a concept of an ideal state. As it was expressed in the Institutes of Justinian fourteen centuries ago, it is the constant and perpetual wish to render every man his due.
It has more recently been said, "It is what the right-minded members of the community--those who have the right spirit within them--believe to be fair". It is the Maintenance of Right, the Liberty of the Individual and the Dignity of Man.
The Law is not Justice. Justice is the goal-the end to be attained. The Law--the instrument--the means by which we strive and hope to attain it. But the Law must be dictated by and imbued with an all pervading sense of what is right, what is fair, what is Justice.
The English Law--the law of English-speaking peoples throughout the world, the British Commonwealth, the United States and every place to which the Englishman has taken his law, has grown, not from the metaphysical theories of juristic experts, but from the customs and practices of the fields and farms and roads and villages of our Anglo-Saxon and Norman forebears who realized that freedom is not so much a matter of the formulation of sonorous abstractions as of protecting the rights of each single person in the state and that the test of freedom lies in the rights of the individual and in the readiness of the law to uphold them.
To quote Lord Justice, Sir Alfred Denning, of the English Court of Appeal, "The peculiar genius of the British Constitution lies in the practical instinct to see that neither rights nor powers are exceeded or abused. This instinct runs through the whole of our search for justice and liberty. The English distrust abstract philosophy as much as they distrust formal logic. Some may suggest that this is because they do not understand philosophy or logic, but the better reason is because they know they are apt to lead to error. The solution to every problem depends on the question, "Will it work?" That is to say, will it help to ensure justice and liberty? But they do not seek to define justice and liberty. They take those conceptions as well understood and busy themselves with the machinery to enforce them."
This is most cogently demonstrated in the Criminal Law wherein the State--the people as a whole--has made rules of conduct for the preservation of peace and good order within the community and for the safety of life, limb and property of its individual members. In doing so the State recognizes the doctrine of the free will of the individual.
The Criminal Code of Canada, unlike the Ten Commandments, is not a catalogue of prohibitions: "Thou shalt not steal", "Thou shalt not kill". It is rather a descriptive code of conduct for which sanctions or penalties may be imposed. It uses the phraseology throughout. "Every person who steals, kills, and so on, shall be liable to a penalty". The individual may, therefore, exercise his free will even to commit anti-social or offensive acts, but always with the knowledge of the consequences which may follow.
Because a crime by its nature or its gravity is an offence against the public, the rights of the in injured party, if there be one, are merged in or subordinated to the greater interest of the community. Once a criminal prosecution is commenced his status is no more than that of witness, if required, and all criminal prosecutions are carried on by, and in the name of the State or Crown.
In doing so the State does not represent only the injured party nor only all the other citizens of the State. It acts for the whole including the offender himself. But the State dissociates itself from the act of its own member--it denunciates his conduct and exhibits an antagonism in its will against the will of the wrong-doer.
It is in the rules of procedure and rules of evidence which are the mechanics of this process of State against offender, that the principles of Right are mainly preserved and conversely it is this field wherein lies the danger of loss or abridgment of those rights not only of the individual accused but also of the individual victim and of the community as a whole.
These procedural rules are the result of centuries custom, precedent and legislative enactment. Originally expressed in terms of broad principles, they were flexible and adaptable, capable of application to individual circumstances. But as precedent was piled on precedent, as Ossa on Pelion, they became immutable rules of law, the more so when they were the subject of legislation. The rule and not the reason for the rule became the important thing. In this there lies a danger and a threat to justice. The complexity and variability of human conduct and the circumstances surrounding it can scarcely admit of a universal and equal incidence of the effect of such inflexible regulation.
Frequently today we hear demands from various quarters for legislation to further protect and safeguard the rights of the accused--legislation to eliminate confessions, to take an example. Though sincerely made these demands are too often born from particular circ instances. It cannot be gainsaid that there have been case in which a person has been convicted on the confession of a crime which he had in fact not committed. There have been others where his confession, though true, has been wrongly admitted, and it has been the main or sole reason for his conviction. But these instances, Gentlemen, when viewed in the light of the great flood of cases which pass through the law courts and the courts of justice of this land every day, are almost infinitesimal in number.
Crime is by its nature secret and clandestine. The most logical source of truth is the offender himself. To stifle this source is to frustrate truth. So long as the rules which now exist, the ones which require that a confession be voluntary--that the accused be not induced to falsely incriminate himself--are vigorously upheld and conscientiously and honestly applied, can injustice result?
To formulate a law which will have universal application is taxing the legislature to the limit of its human capabilities and it must be seen to that what will achieve or appear to achieve justice in the one instance does not result in injustice in many others.
Legislation tends to become static, whereas the rules should be dynamic and so elastic as to ensure that justice can be done in every case. If legislation there must be, let it be an expression of general principles of rights, leaving the application to the discretion of the courts.
In these rules the greatest emphasis has been placed on the protection of the accused. Quite apart from the sense of fair play and sympathy for the underdog which is innate in English-speaking peoples, the reason for this emphasis has been not so much the desire for justice as the fear of injustice. We hear it frequently said that it is better that ten guilty men go free than that one innocent man be convicted. That is not justice. If ten guilty men were to be convicted and the one innocent man were to go free that would be justice.
The reason for the origin of many of these rules was the need to protect the innocent. At a time when an accused was not entitled to have counsel or to testify in his own behalf he was at a disadvantage when confronted with the overwhelming forces of the State. The rules were necessary to preserve the balance. The only time harshness of punishment out of all proportion to the gravity of the crime or its effect upon the community required these rules because of the dire consequences of a wrongful conviction.
With the growth of the Law in its recognition of fundamental rights the needs for some of these rules have long since diminished or disappeared, but still these rules persist. They serve not so much to protect the innocent for which there are other adequate rules but frequently to protect the guilty, frustrating the establishing of truth beyond a reasonable doubt. To place undue emphasis on the rights of any group of individuals in the community is to make them a privileged class. Caution must be exercised that by focussing attention on the accused it is not at the expense of justice to the community and its members who have been the victims.
What of the victim? What are his rights?
He has the same right as any other citizen to receive his due--to be protected--to go about his way safely and without molestation.
Too often he is the forgotten man. Not indeed when the victim is a child and the crime a heinous one.
But what of the victim of the highway killer, peremptorily executed without benefit of counsel or of clergy he ends on the mortician's marble slab, just another statistic while the whole attention, too often sympathetic, is centred upon the unfortunate accused who was his executioner?
What of the disfigured who carry their scars like a life sentence to the grave, long after the accused has paid his debt to society?
What of the psychologically maimed, the victims of the sexual offender? What State agency works to rehabilitate them as it does their despoilers?
What of the victim of the thief whose rights have been subordinated to the State, which then proceeds to put the offender away virtually beyond the reach of the victim's civil remedy?
You may well ask, "What is the answer?" Is it to return to the Lex Talionis--an eye for an eye and a tooth for a tooth? No.
Is it to say that in any sense the rights of the accused should be abridged or lessened one iota? No.
Is it to say that when we examine the rights of any individual or class of individuals we keep in mind the rights of every one, viewing them in their proper perspective, so that the universality of justice may be achieved and maintained.
It is to say that we must have a vigilant and resolute and strong Parliament,--cognizant of its duty to see that no enactment shall abridge the rights of the community, of any group or of any individual in it.
It is to say we must maintain a strong and independent judiciary, astute to see that the principles of rights are maintained according to the rule of law, at the same time exercising that inherent discretion, where the particular case demands, to see that no injustice shall occur to the individual.
It is to say we must have a press that is free, a press that is vigilant to bring to light injustices and fearless to expose those agencies who would put our liberties in jeopardy.
It is to say we must have an enlightened citizenry, jealous of the traditions of liberty in which they have been nurtured, who will never turn the blind eye to injustice and like the Pharisee, pass by on the other side.
Our system is a good one. It would of course be idle to say that under it there have not been, and will not again be, abuses--that innocent men are never convicted of crime. No legal system administered by man could secure such a result. Human frailty and fallibility must lead inevitably at times to error but this does not justify condemnation of a system necessarily subject to human judgment.
We can all of us however keep that error to a minimum by maintaining constant watch to see that the fundamental rights and principles are preserved--not to be swayed from reason by bias or prejudice, sentiment or maudlin sympathy, not to lose sight of truth in irrational hysteria.
Finally, when called upon to participate actively in the maintenance of right, whether as citizens in the role of party, witness or juror, whether as law enforcement officers, or whether as officers of the Courts, to perform our duties with conscience and so preserve our heritage and achieve the goal--Justice based on Truth.
MR. MARTIN: I think for about the first time in twenty years I have the somewhat doubtful privilege of speaking after Mr. Bull, because under our rules of Criminal procedure if an accused calls any evidence then his Counsel must address the Jury first and Crown Counsel has the right to address the Jury last. The right of addressing the Jury last is thought by Counsel to be a great privilege. I find after listening to Mr. Bull's eloquence it is just as difficult to speak after him as before.
Gentlemen, a mere reference to the origin and history of what may be called our civil liberties suffices to indicate the importance of our rules of Criminal Procedure.
When our English ancestors were securing their civil liberties they did so not by procuring the assent of their would be Royal oppressors to general declarations of principles of freedom but by exacting distinct and definite promises that certain procedural rules should obtain.
Among these procedural rules were the right to trial by jury, the right not to be placed in jeopardy twice for the same offence, the right to test the legality of imprisonment by the Writ of Habeas Corpus.
Now when Englishmen crossed the Atlantic Ocean in the 17th century they brought with them their concept of Justice as embodied in these rules and in the United States of America they endeavoured to secure those basic rights for future generations by specific constitutional guarantees and in the United States of America no act of a State Legislature and no act of Congress can abrogate those rights because they are protected by the Constitution.
Under the Anglo Canadian Legal system our fundamental rights are to be found only in the rules of criminal procedure and general principles of law which govern the arrest and trial of accused persons. Their continued existence is not guaranteed by any organic law and in legal theory any or all of those rights could be completely abrogated by a simple act of Parliament. Nevertheless they have endured. That is because they embody the spirit of the people of this country.
My fear is not that any government would or could by a single act of legislation sweep aside or annul these basic rights while we remain a democratic country--that is by a single act of legislation sweep away or annul those basic rights. My fear is that with the fast developing increase in governmental authority with the prevailing emphasis at the present time on the rights of the State, that these rights of the individual will be gradually whittled down that there will be a gradual process of whittling down, a process of erosion so gradual and subtle that it will pass unnoticed and that as a result certain of our fundamental rights will eventually be substantially impaired and that in certain areas of legal action by the State these rights would gradually disappear altogether.
I propose to mention some of the rights of the accused and to indicate where in my opinion, they are in jeopardy. Now the basic rights of the citizen as I conceive them to be, are these:
Firstly, Freedom from arrest except under conditions laid down by law. Generally speaking, a person may only be arrested upon a warrant signed by a Justice of the Peace, and authorizing a police officer to arrest the person named or described in the warrant for the specific offence stated in the warrant. Of course, a police officer may also arrest without warrant any person whom he believed on reasonable and probable grounds has committed an indictable offence--a term loosely applied to the more serious offences. He may also arrest a person who is about to commit an indictable offence. The officer must then bring the arrested person before a Justice of the Peace within a period of twenty-four hours and if not available within twenty-four hours he must bring him before a Justice as soon as possible. At that time the accused will have the right to apply for bail unless the offence is murder or one of the offences in respect of which only a Supreme Court Judge can admit to bail.
It is important to note that under our legal system there is no right on the part of the police to detain a person for questioning: there is no right to hold a person on suspicion of having committed some offence. If a police officer wishes to restrain any person in his liberty, then he must arrest him on some specific charge and be prepared to justify his conduct in a court of law. Our courts frown upon the practice of arresting persons on charges such as vagrancy in order to enable the police to question them upon some other offence which they are suspected of having committed.
The second fundamental right of an accused is to know the specific transaction and the legal nature of the offence that he is called upon to meet.
Now, the written accusation which is called an indictment must give the accused this necessary information. At one time the indictment was unnecessarily long and technical. Our criminal procedure has been reformed by eliminating the technicalities without in any way impairing the accused's right to specific information with respect to the charge against him.
Perhaps the most fundamental right which the accused has is the presumption of innocence. This means that the prosecution must prove the guilt of the accused. There is no burden cast upon the accused to prove his innocence and if at the end of trial whatever the grounds of suspicion may be the guilt of the accused has not been established in accordance with the rules of evidence--with that legal certainty beyond a reasonable doubt that the law requires the accused is entitled to acquittal.
In the famous case of Woolmington v The Director of Public Prosecutions the Lord Chancellor expressed the Englishman's veneration for this principle in this magnificent language "throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt--no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained."
Yet it is this very principle which is in great danger from the legislative process at the present time. In proportion as a crime is difficult to prove or in proportion that it is particularly heinous, Parliament from year to year whittles down the presumption of innocence by the creation of artificial presumptions of guilt upon proof of certain facts, or goes still farther and provides that upon proof of certain facts the burden is cast upon the accused to prove his innocence.
To take but a few examples. How many people know that the finding in your house by a police officer who enters under an order to search, of an ordinary deck of playing cards creates a presumption that your house is a disorderly house, to wit, a common gaming house, because it throws upon you the burden of proving innocence. How many people realize that the mere possession of a bottle of liquor in your own residence casts upon you the burden of proving that you acquired it lawfully, or that you are not keeping it for sale, or not one of the other offences which exist under the Liquor Control Act. I warn you that is a burden you might find it very difficult to discharge if the particular bottle of whiskey were given for a Christmas present. The finding of a screw driver in your automobile under the existing law casts on you the burden of proving that you have not that screw driver in your possession for the purposes of house-breaking. You might think this is a burden you could very easily discharge. What about the unfortunate man who has a previous conviction for burglary, even though he may have long since rehabilitated himself.
A man can be given a lift in an automobile in which a narcotic drug is found perhaps in the glove compartment and he has cast on him the burden of proving his innocence to the charge of being in possession of that drug which he can only discharge by proving to the satisfaction of the courts that he didn't know that drug was there and that it was not there with his consent.
Now if he fails to convince the courts of that, a further presumption arises that he is in possession of the drug for the purpose of trafficking, an offence punishable by fourteen years of imprisonment. Hence, a person might be convicted of that very serious offence by the creation of two artificial presumptions on the part of the legislation which the accused was unable to rebut. He might be unable to satisfy that burden simply because the tribunal of fact didn't believe his denial.
There are many more illustrations that I could give to you if time permitted.
The right to be tried on an indictment or accusation found by a Grand Jury and to have his guilt or innocence determined by a jury of his peers has for centuries been considered the birthright of the people of this country, and yet in most of the provinces the ancient institution of the Grand Jury has been abolished.
Now, the function of the Grand Jury, unlike the trial jury, is not to determine the innocence or guilt of the accused but to ascertain whether there is sufficient evidence to warrant his being placed on trial at all, and many a person has been saved from the ignominy and expense of a trial by the Grand Jury finding not sufficient evidence to warrant his being tried for the offence and refusing to return an indictment.
That safeguard has now been removed from our law in most provinces in Canada. The right to trial by jury in respect to many serious offences has been taken away.
There are a number of quite serious offences for which there is no longer a right to trial by jury and no person can safely say that the list of offences with respect to which the right to trial by jury is excluded may not be further extended.
Now, it is one thing for Parliament to provide than an accused should have the option of being tried by a Magistrate or Judge without the intervention of a jury. It is quite another thing for Parliament to take away the right altogether without his consent. A person who is alleged to be an habitual criminal no longer has the right to have his status determined by a Jury and upon conviction he may be sentenced to a penitentiary for an indeterminate period which of course may be life imprisonment. The Criminal Code provides that "the Minister of Justice shall, at least once in every three years, review the condition, history and circumstances of that person for the purpose of determining whether he should be permitted to be at large on license and if so, on what conditions." If the Minister comes to the conclusion that he should not be freed he remains in the penitentiary for the rest of his life. It would seem that this legislation removes the person found to be an habitual criminal forever from the jurisdiction of the courts. In the case of review by the Minister there would appear to be no provision for him to be represented before the Minister. The Minister need give no reasons for his refusal to allow the accused to be free on license, and there is no appeal from his judgment which is inscrutable.
This is another example of the gradually encroaching power of the State and the gradual demolition and erosion of our fundamental rights.
The development of scientific aids and their use in crime detection I do not think in any way place the rights of the accused in jeopardy because scientific tests such as blood tests in automobile cases, cannot be taken without the consent of the accused, without rendering the person who takes them liable to be charged with assault. Although by a strange anomaly in our law of evidence even if the test was taken without the consent of the accused it would still be admissible in evidence against him.
The chief safeguard, however, is that the ultimate decision rests with the Court. The experts merely give opinions as to the conclusion drawn from the analysis of samples or other subjects. He is subject to cross-examination by Counsel for the accused, and the Court may either accept or reject what the expert says. In that way the guilt or innocence of the accused is determined in accordance with traditional rules.
One of the most distinctive features of our legal system is the right of the accused not to incriminate himself. He is not obliged to answer questions put to him by the police before trial, and at the trial he cannot be questioned by the Judge or prosecuting Counsel unless he volunteers to give evidence. If he chooses not to give evidence then no comment can be made by either the Judge or the prosecuting Counsel on his failure to do so.
Again, if a confession is sought to be introduced in evidence by the prosecution, the prosecution has the burden of satisfying the Judge that that confession was freely and voluntarily made. If obtained by any form of duress, either mental or physical, then the confession will be rejected and will not be heard.
The reason for that rule is that a person under duress might confess to a crime he was not guilty of in order to evade his oppressors or for some other reason.
Now, at one time the right of the accused not to answer questions put by the Police was so jealously guarded that English Judges rejected any statement made in answer to a question put by a Police Officer to a person in custody as not being made voluntarily. About fifty years ago our Courts held that a statement was not necessarily inadmissable in evidence because made in answer to questions put by the police, providing that the questioning by the police was not in the nature of cross-examination, in the nature of interrogation designed to break the accused down, to deprive him of his free and voluntary will.
It is my view that the only real danger that exists at the present time with respect to the accused's immunity against self-incrimination consists perhaps in a too liberal attitude, or will come from a too liberal attitude in the future on the part of our courts toward lengthy police interrogation.
I come now to the last and perhaps most fundamental right that the accused has--the right to make full answer in defence.
In some aspects this particular right is more fully protected than at any time in history. It was not until 1836 in England that the accused obtained any right of Counsel to speak for him in the ordinary sense. The imperative requirement that a person charged with a crime have Counsel to defend him I think needs no elaboration.
Mr. Justice Stephen, perhaps the greatest authority on the subject of the Criminal Law and its administration said, "if the facts are at all numerous, if the witnesses either lie or conceal the truth, an ordinary man, deeply ignorant of law and intensely interested in the result of the trial, and excited by it, is in practice utterly helpless if he has no one to advise him."
The bare legal right to Counsel would, however, be meaningless if it were not implemented in some practical way and in most of the counties and districts in this province the system of free legal aid exists whereby the person accused of a crime, without the means to employ Counsel, can apply to the Sheriff of the County or District to have counsel assigned to him.
Apart altogether from the system of free legal aid, the Bar has always voluntarily assumed the obligation of defending persons charged with serious crimes.
Until the close of the last century an accused person was not entitled to give evidence in his own behalf. That right is now accorded to him.
That must strike one as rather startling, that where a trial is taking place with respect to a charge of crime alleged to have been committed by the prisoner, that the person most affected, the prisoner, could not be heard to give his version. No doubt early English Law rejected the evidence of the accused because it was thought his motive to lie was so strong that his evidence was virtually valueless. Our law now takes a more humane view. However, the right to give evidence is considered by many eminent Canadian lawyers to be a doubtful privilege. If the accused does give evidence on his own behalf he may be cross-examined with respect to his previous criminal record, if he has one. The fear that the Jury may be thereby prejudiced against him does deter many an accused person from giving evidence on their own behalf, and many experienced Counsel advise prisoners who have previous convictions not to give evidence for fear of prejudice, and it may well be that juries are from time to time prevented from fairly trying the only issue before them which is whether the prisoner is guilty of this particular charge, by a consideration of his previous record. It is all too easy to come to a conclusion that because the accused has a previous record he is therefore a bad man and has possibly committed this particular crime, even though the evidence to prove that may be decidedly weak.
I think it would be preferable if the English rule that a prisoner who gives evidence could not be cross-examined with respect to previous convictions prevailed here. In England a prisoner cannot be cross-examined with respect to a criminal record unless he has given evidence of good character or unless the previous offences are so intimately connected with the one with which he is charged that they tend to prove his guilt on that charge.
The right to counsel and to give evidence may be almost valueless if a person is forced to go on trial not knowing what witnesses are going to be produced against them and what the substance of their testimony is going to be because how can he prepare the defence if he doesn't know what evidence he is called upon to meet?
While it is generally thought among lawyers that modern practice concedes the right to accused persons to obtain this information there are prosecuting officers who take a different view and in the absence of effective means to obtain disclosure of the Crown's case the accused may be gravely prejudiced in his trial.
It is not my intention to suggest to you that we need at this particular time in our political history a Bill of Rights to protect fundamental concepts of Justice but I would remind you of the words of a great Irish advocate J. P. Curran who said, "Eternal vigilance is the price of Freedom" and I would suggest the rights for which our ancestors struggled so long and hard are worth protecting.
And lastly I would suggest that crime prevention and control is best achieved not by systematic abrogation of basic rights but by an efficient law enforcement personnel within the existing legal system and that in the final analysis to use the words of Professor Wechsler "the most satisfactory method of crime prevention lies in the solution of the basic problems of government--the production and distribution of external goods, education and recreation."
THANKS OF THE MEETING were expressed by Mr. Alexander Stark.