"Technicalities": do they exist?

We often hear of accused individuals being acquitted on the basis of a "technicality". What does this mean, and why is this permitted in our society? We understand Canada to be a liberal democracy, a so-called "advanced" society with a constitution which governs our legislators, police, and citizens. Why, then, do we hear of criminal charges being thrown out of court for purely "technical" reasons?

To answer this question, we must explore what is encompassed by these "technicalities". It is not the case, for example, that charges are thrown out of court and accused persons acquitted merely on the basis that a comma is omitted from the charging document, or an accused person's middle name is misspelled. On the contrary, what are often referred to as technicalities are in fact matters of great significance to a system that is premised on principles such as proof beyond a reasonable doubt, fairness to all individuals detained by state authorities, dignity and humanity in the criminal trial process, and reliance upon accurate and trustworthy evidence.

We hear from time to time that individuals were acquitted because they were identified in court only, and no other identification process was used. Is this a mete technical matter? When we examine the reasons for this result, however, it is easier to understand why the deficiency in this type of case is substantial as opposed to minor or merely technical. Trials often occur months, or even years after the event. When eye-witnesses testify in court, they are routinely asked whether they see the individual who committed the offence in the courtroom. The person seated beside the defence lawyer, who may be clad in prison coveralls, would be the logical suspect. An eye witness may have a vague recollection of what the individual who committed the act looked like, bolstered by the suggestion that the police would have arrested the right person. Witnesses often presume that the person who was charged is in fact the perpetrator.

Courtroom identification, however, is a notoriously suggestive and unreliable procedure. Judicial experience and wrongful convictions have shown that this procedure is unreliable when it stands alone, and that other procedures must take place in order to provide an identification which may be relied upon as accurate. We now know that witnesses should be shown, sequentially, a series of photographs of individuals who are similar in appearance to the description provided, without any suggestions as to which individuals, if any, have been arrested or charged. This type of identification procedure should occur soon after the event so that nothing taints the witness's memory. For example, if a witness sees a photograph of the suspect in the newspaper, that photograph may be imprinted in the witness's memory and it may be that person whom they are likely to identify later, as opposed to relying solely upon their memory.

It is only in the last several decades that cases of wrongful conviction have been examined by commissions of inquiry. The cases of Morin, Milgaard, and Marshall are but a few examples of individuals who were wrongly convicted. Many of these wrongful convictions, where individuals have spent years or even decades imprisoned, were based on improper identification procedures.

Many courts in this country and elsewhere have confirmed that eye witnesses are often very convincing because they, themselves, are so convinced. Most eye-witnesses are honest individuals. However, they can be mistaken. As a result, it is up to the courts to ensure that identification procedures are fair. Fairness protects not only the accused, but also, significantly, society at large, which has an interest in ensuring that the correct individual is convicted in order to foster public safety, and that the innocent go free. An acquittal based on faulty or deficient identification procedures is not an acquittal based on a technicality. It is one which ensures that our system functions properly and fosters respect.

What about cases where an individual is acquitted based on insufficient grounds to arrest? We have all heard of circumstances where a person is acting suspiciously and is arrested by the police and ultimately found with stolen goods. Notwithstanding, the person may be acquitted because the court finds that the police lacked "reasonable and probable grounds" to arrest. How can that be right when we know that the individual was committing an offence? Obviously the police were correct in their assumptions so why should this individual be sent on his way?

The Canadian Charter of Rights and Freedoms protects every individual from unreasonable search and seizure. What this means is that we are all free to go about our business without worry that we can be stopped by the police and searched. Yet surely, we think, the police would only detain and search an individual who had committed a crime. We must look, however, to the predicament of law-abiding individuals in many other countries where constitutions such as ours do not exist or are not followed. In those countries, individuals are often apprehended and detained, merely on the basis of suspicion, or because they are thought to be operating contrary to state interests. Our political culture may not tolerate that type of state intervention now, but that is something which could change in the future, based on concerns for state and public security. Aside from our political culture, the constitutional provision which requires the police to have reasonable and probable grounds before arresting individuals is a significant protection against that type of behaviour by the authorities. Suspicion is not enough.

Our courts must foster the law and ensure that arrests do not occur unless there is a sufficient and lawful basis. This may mean that some guilty individuals will go free, but that is a price which society must pay on occasion for the freedoms which we all enjoy. An acquittal which occurs for that reason is not one which stems from a "technicality". It is one which stems from a deeply rooted desire to protect the freedoms that we all enjoy.

Yet another scenario with which many are familiar is that in which an accused is found not guilty because he was not advised of his right to counsel. He may even have confessed to some involvement in the act in question. Why can evidence demonstrating his involvement not be used in the case against him merely because he was not told that he could contact a lawyer? The right to counsel is a right ingrained in our system. If we were arrested and taken to the police station, most of us would like to have an understanding as to how long we could be kept in custody, what we could do to secure our release, whether we could speak to family members, and what, if anything, we were required to say or do. If we are not advised of our right to counsel and given an opportunity to exercise that right, then our system would look like those in other countries where individuals can be picked up and detained, their families hearing nothing from them, not knowing where or why they are being kept, forced to sign confessions or to incriminate themselves. That type of system is fostered when accused persons have no rights, and lawyers are seen as having no role outside of the courtroom.

In Canada, if a legal or constitutional right has been breached, our courts will determine whether evidence should be excluded. The analysis will consider whether the administration of justice would be brought into disrepute if the evidence were admitted at trial, whether trial fairness would be impacted, and the relative seriousness of the Charter violation. Judges understand that it is fundamentally unfair to support a criminal prosecution with evidence that is created by the accused himself because the state failed to respect the accused's constitutionally protected rights. The courts are rightly concerned with whether accused persons are deprived of the presumption of innocence, the right to silence, and other constitutionally protected rights.

When we look at the broad principles which underlie our rights, it becomes clear that what may have appeared to be technical matters are, in fact, matters of great substance. These form the foundation of a system which respects our freedoms and protections. We owe those who have been wrongly convicted nothing less than the assurance that we will try to prevent such wrongful convictions in the future. We must also ensure that we strive to understand and defend the protections offered by our system.

Deborah R. Hatch is a lawyer with the firm of Gunn, Prithipaul and Hatch in Edmonton, Alberta.