Tuesday, November 3, 2009

Fairness, the lost value in our justice system

Sometimes I find myself feeling overwhelmingly angry at officialdom and those we elect or appoint to public office. They seem to be so out of touch with what the public thinks or wants so much of the time, especially when it comes to issues of justice and fairness.

In Toronto a shopkeeper in Toronto’s downtown Chinatown shopping district chased down a thief who had stolen $60 worth of merchandise from him earlier in the day, captured him, tied him up and called police to take him away. That they did, but before leaving the scene they arrested the shopkeeper and charged him with kidnapping, assault, carrying a concealed weapon (a box cutter) and forcible confinement.

The thief admitted his crime in court and also admitted to another theft that day; he had a long record of petty theft and was well-known for his shoplifting career. The judge reduced the recommended sentence of 90 days incarceration to 30 days in return for the agreement of the thief to testify against the shopkeeper in his trial.

In the past two days, the Chief of Police in Toronto, Bill Blair, has held a conference with the media to deny that the police had any involvement in the reduction of the sentence and to plead for understanding that their hands are tied when it comes to laying such charges. The confidence in the police amongst the Chinese community in Toronto, which is a large community, has dropped like stone. The Chief, of course, lays the blame on the media misinforming the public.

The idea that instead of charging this shopkeeper, the cops should have given him a medal at a public awards ceremony for helping to keep Toronto safe from crime never entered Mr. Blair’s consciousness.

But that is exactly what public thinks should have happened.

The Crown prosecutor however knows this to be true. The two most serious charges against the merchant have now been dropped, the kidnapping and concealed weapon charges, and he will go to trial on the lesser offenses. Earlier the merchant declined a plea bargain that would have seen him plead guilty to forcible confinement and concealment of a weapon in return for a suspended sentence and no jail time.

So what is the prosecutor up to? Going to trial on the lesser charges means the matter will be dealt with by a judge and not a jury. There is not a shadow of doubt that a jury would acquit this guy instantly and the Crown knows that. By offering that plea bargain the Crown has already conceded that this individual does not deserve to go to jail.

So rather than do the right thing, which is to drop all charges against Mr. Shopkeeper, we are still going through the farce of a public trial pretending that this man has actually done something wrong.

These people running this circus are all boneheads.

Unfortunately, unreasonable execution of office is not confined to Canada’s justice officials.

In the United States, as part of a plea bargain in the federal courts, a defendant must waive his or her rights to raise DNA evidence in any subsequent proceeding. DNA evidence has now become the gold standard in determining guilt or innocence, and all sorts of people who were convicted at trial are subsequently exonerated by comparing DNA evidence from a crime scene to that of the defendants.

People enter into plea bargains for all sorts of reasons that may have little to do with whether they actually committed the crime as charged, as was the case with the Toronto merchant had he decided to go with the plea bargain. It is standard practice in the U.S. to “throw the book” at an accused with the consequence of very long prison sentences and an accused must weigh carefully the risk that if he or she goes to trial the consequences could be very serious. Often a plea bargain is nothing more than a trade off on risks.

Prosecutors and judges are elected in the United States and they like to run on “hard on crime” platforms because it plays well with the voters. Prosecutors in particular like to boast about their high percentage of convictions, especially if they intend to parlay their courtroom curriculum vitae into a run for higher political office. It would be embarrassing and politically damaging to have their conviction records overturned on the basis of subsequent DNA analysis.

So fairness goes out the window in favour of career opportunities.

That really sucks.


Anonymous said...

What our good blogger, and apparently, many in this city do not realize, is that this poor, hard working shopkeeper, DID do something wrong. He is no more innocent than if one were to shoot a fleeing burglar in the back. At what point have we condoned, or moreover, encouraged, vigilante justice? Perhaps that is only permissible to the "downtrodden" of our society. Had the roles been reversed, maybe our good blogger would have been singing a different tune. Had an upper middle class WASP done the same thing; namely go after an individual HOURS later, TIE UP an individual and HOLD them in their van (innocent until proven guilty? ) I doubt that this BLOG would have been written the same way.

Navigator said...


So this is a racial and class issue? Well, if you say it is then I guess it must be so, although, that hadn't occurred to me before you raised it.

In what universe could you possibly make an equivalent moral comparison between shooting somebody in the back with this shopkeeper's action?

And if you going to quote a common phrase, then parrot the whole thing: "Innocent until proven guilty in a court of law." Of course, you have to get the guy to the court first, which could prove a little difficult if you don't detain him until the cops come and take him away.

My point, dear Anonymous, is that what he did should not be considered wrong under the circumstances. Other circumstances (shooting somebody in the back) possibly, but not this case.

Anonymous said...

Well dear Blogger, this is a race and class issue. You just have what I like to call a case of "white guilt". I am white, make a six figure income, and drive an import - God help me, I have sinned! However, please correct me if I am wrong. If I am, than i happy to know that you will defend the shopkeeper in Yorkville with the same fervor if they happen to have a GUCCI or Prada bag stolen from their establishment. You would defend them wouldn't you? Even if that means they took policing into their own hands, and bound the perpetrator with silk scarves and tucked him/her away in their Lexus SUV till the actual police arrived?

And, dear Blogger, I will leave the parroting of phrases to you. You seem to do very well at repeating the base, public opinion.