Anonymous Until Proven Guilty
Legendary reporter Christie Blatchford has long been feared by Toronto-area criminal defence lawyers. I personally have experienced a clawing sense of unease on those occasions when I have glanced over my shoulder before embarking on a difficult cross-examination and noted her at the front of the public gallery, pen poised to scratch furiously into notebook. Blatchford’s style for many years has been incisive, descriptive, graphic, and often ruthless when she (more often than not) reaches the conclusion (usually well in advance of the trial judge or jury) that your client is a fiendish monster. So legendary is her vitriol and so piercing her prose, that an entire website has cropped up dedicated to chronicling her so-called “hall of shame” with incident-by-incident “puke-ometer” ratings.
But give credit where credit is due. Blatchford’s April 14, 2014 column commencing her coverage of a trial in which two young doctors are accused of drugging and sexually assaulting a pair of women represents a new high-water mark for fair-minded criminal court journalism. In accordance with the over-arching principle of open courts, the names of the two accused are public record and can be reported freely as the trial progresses. As is routine in sexual assault cases, the identities of the complainants and key crown witnesses in the case are protected by a sweeping publication ban creating an imbalanced one-sided shield of anonymity – an imbalance that prompted Blatchford to conduct an intriguing “social experiment”. On a purely voluntary basis, Blatchford and her paper, the National Post, have opted to anonymize the suspect doctors. With other media outlets gleefully exposing the defendants’ full names, Blatchford herself candidly notes that her efforts “won’t even qualify as a Pyrrhic victory” – though they could, if this social experiment proves to be the seed of a new breed of journalistic flower.
The routine protection of complainants’ identities is rooted in a well-placed desire to accord dignity and respect to victims of crime. A system that re-victimizes someone who has come forward to report a crime by airing their most personal tragedies under a glaringly public spotlight risks creating powerful disincentives to reporting crime. The only problem is, they’re not victims. At least not yet. And often, not ever.
Despite the fact that every courthouse in Ontario staffs a “Victim Witness Assistance Program”, legally speaking, the nomenclature puts the proverbial cart before the horse. There are no “victims” of a presumed innocent defendant unless and until the Crown proves its case beyond a reasonable doubt. Until that time, trial courts deal in complainants and allegations, not victims and crimes.
Moreover, granting the shield of anonymity can create a perverse incentive to fabricate allegations. I have participated in many cases over my career where the unscrupulous have misused the criminal justice system as a powerful weapon against a hated individual. Look to internet chat rooms and online forums where the absence of genuine identities emboldens the most socially inappropriate behaviour stifling honest respectful debate. Is our regular use of one-sided publication bans having a similar stifling effect on an honest search for truth when the stakes are at their highest in a criminal trial? If a complainant is protected from the publicity of his or her allegations, are we not at least in some modest way encouraging or facilitating false allegations?
Blatchford appears to have come to her decision slowly and organically. Having outed dozens of defendants over her storied career – many of whom were convicted of heinous crimes but a minority were found not guilty at the conclusion of their trials – Blatchford first began to question publicly the inequity of one-sided publication bans back in September of 2013. She noted the forgone reality that a defendant publicly named in a justifiably stigmatizing crime can never recover from being so named, even if he/she ultimately is acquitted of the allegations. It’s not a conviction that soils reputations but rather “the allegations that do the soiling” (emphasis added). “If publicity is the hazard of the reasonably public criminal trial in the reasonably transparent democracy, it’s not an equitable publicity.” And there’s the rub. If both accused and accuser are expected to expose themselves to the shame, ridicule, and psychological torture that is inherent in a hard-fought criminal trial, the collateral damage of society’s commitment to open courts is at least equitably shared. But our system has evolved to the point where, in an understandable desire to protect potentially-soon-to-be-victims, we have created an imbalance where the colossal harm of a false allegation flows in only one direction. The accuser whose accusation is proven unfounded remains anonymous behind the shadowy veil of a mandatory publication ban while the now-acquitted defendant is left with the Herculean task of rehabilitating a reputation left lying in tatters.
If we truly believed in protecting the innocent and supporting those falsely accused of crimes, should we not be imposing publication bans on the defendant’s name until such time as a guilty verdict is rendered? The trend in modern day criminal justice is sadly the polar opposite. Only weeks ago police in Maryland gleefully announced their latest publicity stunt – a plan to live tweet photos of Johns busted in an upcoming prostitution sting. The move is a tacit admission that publicizing someone’s arrest is even more punishing than securing a private conviction. It’s not the trial police care about – it’s the destructive power of instantaneous shame that serves their crime-fighting needs.
There are understandable concerns with shielding the identity of defendants in criminal trials but perhaps the time has come to rebalance the scale. Christie Blatchford’s social experiment is a small step in the right direction and I applaud her for it.
This is an interesting contrast to the EU experiment around a “right to be forgotten”.
Might a wise counsel propose to a court that their client deserves this kind of protection, especially in a case where the mere accusation has the same effect as a conviction and eventual release back into an unhappy community?
As an aside, it seems to me that we have a problem with terminology here. I was uncomfortable with your statement, “[t]here are no ‘victims’ of a presumed innocent defendant unless and until the Crown proves its case beyond a reasonable doubt.” If it were true that a failure to obtain a conviction always sprung from a finding that the alleged event(s) never occurred, then perhaps this statement would be true. But, as you know, oftentimes a failure to secure a conviction does not result only from credibility or factual findings. So to say a person cannot be considered a “victim” until the perpetrator is convicted seems a bit too categorical for me. Should we have three categories – complainants, victims and ??? Or “alleged victims” and “proven victims”? There needs to be some recognition that people may be victimized but ultimately the perpetrator may not be convicted, for a variety of reasons (not all of which mean that the alleged event did not occur).
Melanie,
I agree with you that the absence of a conviction cannot categorically mean the absence of a victim but, as lawyers dealing with terminology in the courtroom, I think we must rely on the binary options available to us in law. This is not to say that victims can’t receive other forms of assistance (financial from the Criminal Injuries Compensation Board or medical via the health system as just two examples).
But our system remains fundamentally imbalanced when we expose innocent-until-proven-guilty defendants to reputational suicide while according complainants, whose allegations have not yet been tested in court, with the veil of anonymity.
I think Melanie makes an excellent point, though it does not affect in any way the recommendation that the accused offenders should remain anonymous until found guilty. Acquittal of the accused does not mean that the complainants were not victimized. No doubt there are some invented or exaggeerated claims of abuse, but there are far too many real ones to use ‘alleged’ routinely with ‘victim’.
Good article. I’ve got a lot of respect for Blatchford on this point. I friend of mine was recently involved in the divorce from hell involving various nasty criminal allegations (he was ultimately cleared on all of them and regained custody of his kids, but only after years of fighting). Fortunately for him, the media couldn’t publish his name, since it might identify the alleged (but not actual) victim, but within his community the mere allegation was devastating. Publication of his name would have destroyed him. More journalists should follow her example.
“But, as you know, oftentimes a failure to secure a conviction does not result only from credibility or factual findings. So to say a person cannot be considered a “victim” until the perpetrator is convicted seems a bit too categorical for me. Should we have three categories – complainants, victims and ??? Or “alleged victims” and “proven victims”? ”
Well, strictly speaking there need not be symmetry between accused and the victim. For example, a person can be innocent of a crime where there is a real victim where the crime was actually committed by a third person. Or one can be a victim of an act that is not criminal. For example, if my car skids on ice and plows into a bus full of nuns, I may not be guilty of any criminal offense (lets say I wasn’t negligent or driving drunk), but there are nevertheless victims. So saying that a complainant is a victim doesn’t mean that the accused is a victimizer.
That being said, rather than having different characterization of victims, do you adopt the Scots law approach of having 3 different verdicts, guilty, not proven (in effect, equivalent to our “not guilty”), and innocent. If you’re accused of a particularly heinous crime, simply being found not guilty doesn’t do much for you. You may be presumed to be innocent in a court of law, but the court of public opinion doesn’t given that presumption much weight. In my friend’s example, although found not guilty, the trial judge went out of their way to find, as a factual matter, that the alleged crime did not occur (in effect, a finding of innocence). In effect, he was found to be innocent. That has no meaning under the criminal law, but when time came to get custody of his kids, that process was a lot easier when he could point to a finding of innocence, rather than to a finding that the crown didn’t prove its case beyond a reasonable doubt (which leaves open the possibility that he might nevertheless have been guilty).
In my line of work, “innocent until proven guilty” is a sad joke. I have dealt with many clients denied employment due to non-conviction information revealed in police “criminal record checks.” One client didn’t even know he had been “charged” with mischief. He was never notified, never went to court etc. But when he did his criminal record check, there it was. When I wrote a letter to the RCMP detachment requesting the information be removed, the supervising officer refused. These criminal record checks are imposing criminal sanctions on people not convicted of any crime. The best way for an angry ex-spouse to “get even” with his or her ex is to file a false complaint with the police, who swallow it hook, line , and sinker. Then, when it turns out that the complaint was groundless, the police will protect the complainant, not reveal who they are and not charge them. The accused now has a non-conviction record and won’t be able to find a job.