22 Sep Ei incumbit probatio qui dicit, non qui negat

I don’t know which is more disturbing: The NDP Government’s success in persuading a Supreme Court justice to impose a $5,725 fine on a man found innocent of the crime with which he had been charged; or Finance Minister Graham Steele’s crowing about this ‘victory” in a news release.

”]CBRM’s finest didn’t have the goods on John Joseph Reynolds.They raided his Sydney Mines apartment last February, seized a bit of pot and and some hidden cash, but they couldn’t prove he was selling marijuana, and they knew it. So they withdrew the unsupportable charge against him, and a Provincial Court judge pronounced him not guilty.

In our system, a not-guilty verdict is supposed to be tantamount to a finding of innocence. Instead, taking cues from the Queen of Hearts (“First the verdict; then the trial!”), Nova Scotia now imposes criminal sanctions without regard for criminal trials.

To circumvent the presumption of innocence in Reynolds’s case, the justice system allowed police to launch a second trial, one that masqueraded as a civil proceeding. The pretence liberated cops and prosecutors from the strict standard of presumed innocence. It enabled them to punish Reynolds, effectively finding him guilty, not beyond a reasonable doubt, but despite one.

The courts, to their shame, let them get away with it.

Like Justice Minister Ross Landry, for whom he was acting yesterday, Steele couched his government’s end-run around the presumption of innocence in bland platitudes, describing the abuse as “a tool” that “government and police are collaborative using” to deter crime. You can call horse turds road apples, but it won’t make them smell any sweeter.

The presumption of innocence is a defining characteristic of a free and democratic society. It is enshrined in the Universal Declaration of Human Rights, in the Canadian Charter of Rights and Freedoms, and the Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe.

Free societies insist on this principle for the simple reason that most people are not criminals. The Latin maxim quoted in the headline above is sometimes more fully rendered as Ei incumbit probatio, qui dicit, non qui negat; cum per rerum naturam factum negantis probatio nulla sit – “The proof lies upon him who affirms, not upon him who denies; since, by the nature of things, he who denies a fact cannot produce any proof.”

The presumption of innocence means the state bears the entire burden of proof, and the defendant none. An accused person need not testify or call witnesses, and his failure to do so cannot be taken as evidence of guilt. Neither jury nor judge can draw any inference from the fact a defendant has been charged with a crime. The case must be decided solely on evidence presented at trial.

Does all this make it hard for police to put away bad guys? You betcha, and for good reason: you really don’t want to live in a country where police find it easy to throw citizens in prison.

Apologists for the Civil Forfeiture Act try to brush these misgivings aside on the flimsy pretext that it concerns civil not criminal matters. Steele’s news release puts the lie to that fig leaf in the first sentence, which describes the act as, “legislation that helps make sure that crime doesn’t pay” [my emphasis]. To which Steele himself adds, “The success of this case sends a message that crime will not pay in Nova Scotia” [my emphasis]. It’s all about crime, and nothing but crime.

By pretending seizures under Nova Scotia Civil Forfeiture are civil in nature, when everyone can see they are criminal, the government and the court have turned criminal safeguards upside down. They  have enabled cops to punish suspects whose guilt they cannot prove. This is a clear abuse of democratic principles we fought wars over, and it brings the justice system into disrepute. Not to mention Graham Steele, Ross Landry, and the NDP Government.