MLJ Volume 36-1.pdf - Robson Hall Faculty of Law

Wrongful Convictions 27
hair microscopy evidence; where the accused pleaded not guilty, asserting
factual innocence and had been unsuccessful in attempts to appeal on the
merits to the Court of Appeal. 78
In their report, the Heads reported that the BC review committee
ultimately reviewed two homicide and two sexual assault cases, and
“unanimously concluded that there was no reasonable basis to believe
that, by virtue of the hair microscopy evidence, a miscarriage of justice
ha[d] taken place in the convictions against the four individual accused
persons”. 79
V. SOME CONCLUDING OBSERVATIONS
The criminal trial has traditionally been seen as the epicentre of
substantive and procedural protections designed to avoid miscarriages of
justice. That is the point in the criminal justice continuum where: an
accused is presumed innocent; the prosecution bears the burden of
proving its case beyond a reasonable doubt; the accused is entitled to the
effective assistance of counsel; prosecution witnesses may be crossexamined
in public; and the prosecution is required to provide the
accused with “open file” disclosure, subject to very narrow exceptions
which are judicially-supervised. And, in an overarching sense, the trial
process in Canada accepts Blackstone’s admonition that at trial “it is
better that ten guilty persons escape, than that one innocent suffer”. 80
In recent years, developments both nationally and internationally have
forced a re-examination of whether the trial is actually the best—and only—
setting for the determination of substantive innocence. Some have argued
forcefully that while the trial process is reasonably well equipped to make
78
Ibid at 153.
79
Ibid at 154.
80
William Blackstone, Commentaries on the Laws of England [Book the Fourth] (Oxford:
The Clarendon Press, 1769) at 352 (in later editions it is often cited as 358). Though
usually attributed to Blackstone, this proposition can be traced back in time through
Benjamin Franklin, Fortescue, Maimonides and the Bible (Genesis 18: 23-32). See
Glanville Williams, The Proof of Guilt 2d ed (London: Stevens and Sons Limited,
1958), at 155–158; and Alexander Volokh, “Guilty Men”, 146 U Pa L Rev 173
(1997), who trace the doctrine back as far as ancient Greece and Rome.