Abstract
What has been seen in the last thirty-five years is a significant shift in the psyche of contemporary society. Beck’s theory of “risk society” has captured the concerns of governments and its institutions to focus fears on risks and insecurity. Within the criminal justice context, this has led to the pervasive consciousness that crime has become part of the everyday experience to be controlled by risk management techniques framed within Foucault’s concept of “governmentality.” Crime has become a ubiquitous risk that must be routinely assessed and managed. This shift in criminological thought has also been seen in the move away from the liberal ideals of due process to the favoring of public protection over the rights of individuals found within the normative model of crime control. The problem in this devaluation of due process is the consequent imbalance of power between the individual and the State. Due process rights are enshrined in the Charter to protect against this imbalance and are never more important than when loss of liberty is at stake, most particularly when the errors due to the constriction of these rights contribute to the acknowledged systemic factors that lead to wrongful convictions.
Highlights
It is a fundamental organizing principle of risk reduction and avoidance in western criminal justice systems that the rate of false positives society is prepared to accept is low and the rate of false negatives or acquittals of the guilty is correspondingly high
Due process rights are enshrined in The Canadian Charter of Rights and Freedoms to protect against this imbalance and are never more important than when loss of liberty is at stake, most when the errors due to the constriction of these rights contribute to the acknowledged systemic factors that lead to wrongful convictions
This paper will firstly show how the Supreme Court of Canada[4] has raised the risk of error for false positives by constitutionally advancing “societal interests” over Charter due process rights that would otherwise guard against the recognized systemic factors that lead to wrongful convictions.[5]
Summary
It is a fundamental organizing principle of risk reduction and avoidance in western criminal justice systems that the rate of false positives society is prepared to accept is low and the rate of false negatives or acquittals of the guilty is correspondingly high. This principle is often epitomized in what is referred to as Blackstone’s ratio “It is better that ten guilty persons escape than that one innocent suffer.”[1]. This paper will firstly show how the Supreme Court of Canada[4] has raised the risk of error for false positives by constitutionally advancing “societal interests” over Charter due process rights that would otherwise guard against the recognized systemic factors that lead to wrongful convictions.[5]
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