The presumption of innocence.

• Author: Davison, Charles B.
• Position: Criminal Law

One of the hottest criminal law topics in the news recently (as of April 2006, when I am writing this column) has to do with the granting of "bail"--more formally known as "judicial interim release"--to persons charged with, but not yet tried for or found guilty of committing, serious criminal offences. At least two high profile cases in Edmonton during 2005 and the early part of 2006 have brought the issue of bail to the attention of the public (and some politicians have been quick to jump on the bandwagon, hoping of course, to gain political mileage by doing so). In general, the public mood seems to be against granting release to persons who are alleged to have committed serious and violent crimes while they await their trials. In one case, the individual's release has now been revoked and he has been returned to custody. In the other case, the accused were granted release and apparently remain at large in the community.

The granting of bail to persons accused of crimes has its most fundamental roots in the presumption of innocence. This presumption underlies all aspects of our criminal legal system and is the most important part of our law and tradition which continues to be observed as fully as possible. In our system of law--and we hope, still in society at large--we value liberty and freedom to the extent that we do not easily permit or tolerate the state to detain an individual until and unless it has convincingly demonstrated that the person in question has committed a wrong of such severity that this form of punishment should be imposed. Thus, under our laws when someone is alleged to have committed a crime of any sort, he or she is presumed to be innocent of wrongdoing. That presumption continues from the beginning of the process--when the charge is first laid--until the end--when the trial concludes with a decision from a judge or jury. Only if the accused person admits their guilt, or the Crown proves to a judge or jury that the individual is actually guilty of the crime alleged, is the presumption of innocence displaced or overcome. If the Crown cannot prove guilt beyond a reasonable doubt--in other words, almost to the point of virtual certainty--the accused person is entitled to be found "not guilty" and to walk freely away from the courtroom.

Because of the presumption of innocence, our system seeks to avoid imposing punishment or restrictions upon the liberty of individuals before a finding of guilt is entered, except and...