  
THE RIGHT TO SECURITY OF THE PERSON
The power to enact restrictions would have little meaning unless it were accompanied by the power to punish offenders. Of what value, for example are restrictions on murder, robbery, and theft, if people can commit such deeds with impunity? While the power to punish is, therefore, necessary, it is also frightening. The potential powers of the state are enormous. Potentially the state could subject the offender to incarceration deportation, execution, decapitation, or mutilation. What greater, more irreparable encroachment could there be on the freedom of individuals than the infliction of such horrors upon them? This is one of democracy's greatest dilemmas. The punishment of the offender is at once an inevitable and terrible violation of individual freedom. How do we reconcile the two? What punishments under what circumstances are most consistent with the democratic commitment to the freedom of the individual? The first principle of punishment flows from what was said in the due process section. No person may be punished by the power of the state, unless such person has been found by an impartial court to be in violation of a duly enacted law. There must, of course, be a fair hearing in public including the right to counsel, the right to confront one's accusers, and the right to reply. But democracy's concern for the individual impels the observance of additional safeguards.
The infliction of punishment is terrible enough to contemplate. But what is intolerable is the infliction of punishment upon an innocent person. Accordingly, our legal system provides that all persons are to be presumed innocent until and unless their guilt is proved beyond a reasonable doubt. This means that the prosecution has the responsibility of proving guilt; the accused need not prove their innocence. Moreover, not any amount of proof will suffce. The suspicion, the possibility, even the probability of guilt are not enough. There must be so much proof of guilt as to extinguish all reasonable doubt. Of course, the insistence on so heavy a burden of proof means that some guilty persons are likely to escape punishment. But that is a risk which democrats are willing to take. For democrats, the commitment to freedom and horror of punishment are so great that they would prefer the liberation of ten who are guilty to the punishment of one who is innocent.
The Right Against Self-Incrimination A corollary of the presumption of innocence is the right against selfincrimination. No person accused of a crime is required to speak. Faced with accusations and interrogations, accused people may opt to be mute. They need not talk to their captors or testify in court. Even though the right of silence might provide a possible refuge for the guilty, it also creates an important safeguard for the innocent. To compel the accused to speak might encourage unfair prosecutions. Even though the police had insufficient evidence, they might be tempted to lay charges against some people, in the hope that the testimony oftheir suspects would supply what is needed to convict them. But, as much as possible, democratic societies seek to protect innocent people not only against improper convictions but also against improper prosecutions. Prosecution, itself, is an awesome ordeal. Even if innocent accused people were ultimately acquitted, they would be forced, in the meantime, to live in a state of considerable anxiety about the outcome. The right of silence reduces this peril for those who are innocent. Since the accused cannot be compelled to speak, the police will be less likely to prosecute, without first having a substantial case. The right of silence recognizes also that, notwithstanding their innocence, some people would be poor witnesses. If such accused persons were required to speak, they might run the risk of being convicted, not because of the deeds they committed in society, but because of the impression they created at the hearing. Of course, accused people may speak if they wish. But, in view of the terrifying consequences they face, the choice must lie with them, not with the prosecution. Suppose, upon their arrest, accused persons, despite the right to be mute declare their guilt to the arresting police offcers? This declaration may not be used as evidence at the trial, unless the prosecutor proves that it was made voluntarily. In days gone by, the king's soldiers often employed the rack and the thumbscrew in order to extract confessions from hapless defendants. Though these instruments of torture may now be obsolete, the circumstances of arrest remain intimidating. In the privacy of cruiser and jailhouse, some offcers may be tempted to invoke coercive pressures in order to obtain incriminating statements. In such an environment, the danger of a false confession is great indeed. As a further protection for the accused person, our law bars custodial confessions from court unless it is proved that they were made voluntarily.
Another corollary of the presumption of innocence is the right to reasonable bail. Although we permit arrests to be made on reasonable and probable belief in guilt, we don't want people to be detained on that basis. Detention before trial represents the infliction of punishment on those who have not been found guilty. The presumption of innocence requires the speediest possible release of arrested persons. The chief basis for holding such people is the risk that, if released, they will not show up for their trials. Thus, many democracies permit the pretrial release of accused persons if they post cash or property as security for their attendance in court. The problem with this arrangement is that pre-trial release could become dependent less on acceptable conduct than on available income. Indeed, there have been many cases where, because of flnancial incapacity, accused people languished in prison for months only to be acquitted when their trials finally took place. As a result, Canada has reduced substantially the situations where cash or property bail may be required. With few exceptions, accused people must now be released unless the prosecution can demonstrate to ajudge or justice the likelihood that, at large, they will abscond or commit certain offences. It is still possible that release could be subject to the condition that any failure by accused persons to attend their trials will encumber them or some third party guarantors with financial debts to the Crown. But we rarely require the money in advance. The goal of the law is to reduce the obstacles to pre-trial release. Society cannot simultaneously presume pre-trial innocence and impose unreasonably upon pre-trial liberty.
The fear of improper punishment is so great that we have developed a residual safeguard - the writ of habeas corpus. People held against their will may apply at any time to a court of superior jurisdiction for a judgment regarding the legality of their detention. If the court finds no legal basis for the incarceration, it will issue a writ of habeas corpus ordering the immediate release of the person detained.
The issue of punishment concerns not only the safeguards for the innocent but also how much may be inflicted upon the guilty. At one time, large crowds were entertained by the spectacle of the public flogging, decapitation, and execution of convicted felons. Today, democratic societies discourage the infliction of "cruel and unusual punishment". The cruel treatment of human beings, even guilty human beings, is hardly compatible with our commitment to the dignity of the individual. Thus, it is inappropriate for punishment to serve the goal of amusement or vengeance. The only justification for inflicting punishment on a human being is the protection of society. As a vehicle for such protection, punishment may serve only certain limited functions: to deter people from breaking the law, to remove law-breakers from situations where they can cause harm, to rehabilitate the law-breakers, and/or to denounce the law-breaking. Any form or amount of punishment that goes beyond such functions is a needless assault on human freedom. This realization has propelled many modern democracies into banning all forms of capital and corporal punishment.
Increasing numbers of people are beginning to doubt whether the rope the chair, the blade, and the whip contribute significantly to the protection of society. In fact, systematic studies suggest that execution and torture add little to the proper functions of punishment that confinement alone would not accomplish. In many modern democracies therefore, confinement is the most severe punishment that can be imposed upon law-breakers. Even at that, there is a growing effort to minimize the length and oppressiveness of this experience. Programs of supervised probation outside of jail are increasingly replacing incarceration inside of jail. Programs of earlier parole are reducing the length of jail sentences. Programs of training and rehabilitation are-being introduced for those who remain inside. Moreover, with a growing number of minor offences, efforts are being made, through such methods as conciliation and voluntary restitution, to deal with the offender completely outside of the criminal process. Sometimes such measures will be applied too readily and sometimes not readily enough. The mistakes in individual cases cannot alter the direction that policy must take. The goal of a democratic penal policy is to inflict no more than the minimum punishment which will give society and its values the protection they need.
|
|
The Fundamentals Of Our Fundamental Freedoms -- The Booklet Contents |
|
| CCLA In The Schools | Join Us | Feedback | Search | Other Interesting Sites | Home |
|
