Justice in the eye of the beholder

Over at the blog Defending People, in a post entitled, “The hunting of justice (an agony in eight fits),” Mark W. Bennett, a Houston-based criminal defence lawyer quotes Clarence Darrow on justice:



“We have heard talk of ‘justice.’ Is there anybody who knows what justice is? No one on earth can measure out justice. Can you look at any man and say what he deserves — whether he deserves hanging by the neck until dead or life in prison or 30 days in prison or a medal? The human mind is blind to all who seek to look in at it and to most of us that look out from it. Justice is something that man knows little about. He may know something about charity and understanding and mercy, and he should cling to those as far as he can.”

So what is “justice?” In my view, “justice, like beauty, is in the eye of the beholder and my eye beholds an ugly truth.”

In a previous Trials & Tribulations column, “If it ain’t fixed, then break it: pro se litigants, civil justice reform, and the economics of law,” I wrote about the systemic and institutional barriers to access to justice among economically and socially disadvantaged litigants. From a civil litigation perspective, Lawrence Solum frames the idea of procedural justice this way:

“The Participation Principle requires that the arrangements for the resolution of civil disputes be structured to provide each interested party with a right to adequate participation. The Accuracy Principle requires that the arrangements for the resolution of civil disputes should be structured so as to maximize the chances of achieving the legally correct outcome in each proceeding. Together, the two principles provide guidance where guidance is needed, both for the architects of procedural design and reform and for judges who apply general procedural rules to particular cases.” (Lawrence B. Solum, “Procedural Justice,” (2004) 78 S. Cal. L. Rev. 181 available at http://ssrn.com/abstract=636721.)

Admittedly, civil justice is secondary to criminal justice. On the loss of freedom ladder, going bankrupt is a rung below going to prison. While civil litigants are (theoretically) entitled to (equal) access to the courts, criminal defendants are forced conscripts into the justice system.

Within this context, there was an interesting report in the National Post on Aug. 3, “Acquittals account for only 3% of cases: data,” in which Shannon Kari writes: “An outright acquittal in a criminal trial in Canada is a lot less common than most people might think.

“A finding of ‘not guilty’ was the result in just more than three per cent of the more than 390,000 criminal cases in the country in 2008-2009, according to data recently released by Statistics Canada.

“If Quebec is excluded from the totals the percentage drops to a little more than one per cent — just 3,570 people acquitted in the rest of the country last year.”

Sure enough, there are caveats: “The data contained in the annual Adult Criminal Court Statistics needs to be looked at with some context though, say those involved in the criminal justice system.”

The article goes on to point out that obviously not everyone charged with a crime is found guilty.

In addition, the stats show Crowns withdraw one in three cases across the country because of a lack of evidence with which to get a conviction. And in Ontario, more than 40 per cent of cases are withdrawn before going to trial.

“It is the remaining two-thirds of cases in which the prosecution does not withdraw, that a finding of guilt is registered nearly 99 per cent of the time, except in Quebec,” says the story.

“In that province, more than 13 per cent of total cases ended with an acquittal. “

Aside from issues of characterization (i.e. withdrawals entered as acquittals) and more sympathetic juries in Quebec, it appears that “justice” is truly in the eye of the beholder. An outright acquittal is not the only datum stake in the excavation for truth.

As Criminal Lawyers’ Association president Paul Burstein pointed out in the article, it is important to match up the percentage of acquittals with the number of contested trials. He says about 95 per cent of cases that go to trial end with plea bargains.

“Guilty to a lesser offence may engage many of the same important public interests as an acquittal,” Burstein is quoted as saying. “It does not mean police got it right.”

He suggests an acquittal rate closer to about 20 per cent if looking at the 964 acquittals registered in Ontario last year after contested trials.

“That is nearly 1,000 people who might have been wrongfully convicted were it not for the checks and balances in our system,” he noted in the article.

If the acquittal rate is really closer to about 20 per cent, as Burstein suggested, then this means 80 per cent of the cases resulted in convictions where the Crown met the burden of proof beyond a reasonable doubt.

Taking the analysis one step further, the Ontario Court of Appeal’s 2009 annual report contains some interesting data for the years 2004 to 2009.

The percentage of leave applications granted has fluctuated over the reporting period for both civil and criminal matters. Family law matters do not require leave to file an appeal.

The percentage of appeals allowed per year has remained relatively consistent in the criminal area and has fluctuated to a greater extent in the family and non-family civil areas throughout the reporting period.

Based on the above, the average error rate for civil (non-family) appeals is roughly 32 per cent. The average error rate for criminal appeals is roughly 37 per cent.

Another interesting trend is that the total number of unrepresented civil appellants remains consistent (104 on average), while the total number of unrepresented respondents is declining (39 on average):

The total number of non-family civil law appeals in which a party was unrepresented by counsel has fluctuated throughout the reporting period.

According to the annual report, the number of criminal appeals in which a party was unrepresented has fluctuated throughout the reporting period. These appeals do not include inmate appeals but do include Crown appeals in which the respondent was unrepresented, as well as appeals in which the appellant was not in custody.

No matter how you do the math, the odds remain heavily in the government and socio-economic elite’s favour. Whether these figures reflect “justice,” however defined, is for the reader to decide.

Antonin I. Pribetic is litigation counsel at Steinberg Morton Hope & Israel LLP, a sessional lecturer at UTM-Rotman School of Management’s diploma in investigative and forensic accounting program, and author of the Trial Warrior Blog

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