My wife was assaulted by a stranger in downtown Toronto, in January of 2020. She was walking through the underground passage from the Eaton Centre into the Queen TTC station. A man suddenly ran up and kicked her in the leg. She was rattled, and her leg was bruised, but she got over it within a few weeks.
She was lucky. A few weeks later the same man attacked another woman, in the same mall. This time he approached his victim from the back and hit her on the head. This lady suffered a serious concussion, and couldn’t work for many months. She was very frightened of walking alone downtown for a long time afterwards.
A suspect was arrested, charged with assault for these two crimes, and put on trial two years later. He was exonerated. The Crown did not prove to the judge’s satisfaction that the accused was the person who had committed the assaults.
In this case, the justice system failed. Either the wrong person was arrested, the evidence was botched, the prosecution was lacking, or the judge made a mistake. Someone definitely assaulted my friend and the other victim, and that person walked free to do it again.
Two Kinds of Error
In law schools, we think more about the other kind of criminal justice system failure. We research and teach extensively about cases in which the state applies too much coercion to people. Starting in 1L Criminal Law, we focus on people who are over-policed, wrongfully convicted, or subjected to cruel and unusual punishment.
And yet protecting public safety is the primary purpose of the criminal justice system. This requires bringing violent offenders to justice, among other things. Lately, people been having serious and understandable doubts about whether that’s happening consistently enough — especially when it comes to stranger attacks on public transit and in downtown urban areas.
“Better that ten guilty persons escape than that one innocent suffer.” William Blackstone laid down this famous ratio in his 1765 Commentaries on the Laws of England. The idea is that the system should err on the side of preserving liberty, and do everything humanly possible to avoid wrongful convictions. This is why proof beyond a reasonable doubt is necessary to convict, and why Crown appeals of “not guilty” verdicts are extremely rare.
Fewer Errors Above All
Is one wrongful conviction just as bad as 10 wrongful exonerations? Or should the ratio be 1:5, or perhaps 1:100? In my view, thinking in these terms lets the public justice system off too easily. Why assume that wrongful exonerations are a price we must pay to avoid wrongful convictions? It’s a bit like your doctor mistaking your seasonal allergies for strep throat, prescribing you antibiotics (which won’t help you), and then justifying this by saying “it’s better that 10 people who don’t need antibiotics take them, rather than one who needs them doesn’t.” You’d be angry. You’d want to know why the medical system can’t do a better job of distinguishing allergies from strep throat, so that it can respond to each appropriately. The criminal justice system must distinguish guilty people from innocent ones, so that it can respond to each appropriately.
More important than choosing which side the system should err on is making sure it errs as little as possible, period. The system must uphold individual rights, avoid wrongful convictions, and confront systemic racism, but it must also apprehend, deter and punish crime. If it doesn’t, victims’ lives will be unjustly and unnecessarily ruined, while social solidarity and confidence in our legal system will continue to erode.