Conservatives Don't Understand Freedom

[mbarrick]

When you pick up a gun and commit a crime you lose your right to be free.

From now on the justice system will stop giving you the benefit of the doubt and send you to jail for a long time.

— Stephen Harper

Nice sentiment, sure to get support from the backwater rednecks and easily the panicked sorts that elect these fascists.

What they are talking about here, hiding it behind the newspeak "reverse onus", is eliminating the concept of "innocent until proven guilty" and replacing it with a presumption of guilt. Much like the Americans doing away with habeas corpus, this flies in the face of the fundamental qualities that differentiate free countries from authoritarian tyrannies.

Section 11(d) of the Charter of Rights and Freedoms states states pretty damn clearly: "Any person charged with an offence has the right ... to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal".

Comments

[mbarrick.livejournal.com]

Having to prove you are not a danger is a presumption of guilt, Ziv. Not for the purpose the trial but for the purposes of the bail and is considerably different than the Dangerous Offender legislation you mention. Post incarceration the individual has already been found guilty and there is nothing wrong with having the onus on the convicted crimial to prove they are no longer a danger. Prior to conviction an individual is innocent under the law, he's simply been accused. In this scenario where someone accused of a crime involving a firearm is presumed guility for the purposes of the bail hearing it's all to easy to abuse the system to the detriment of free and innocent individuals. What if, for example, someone that looks like you commits an armed robbery at a shop in your neighbourhood. You are picked up a few blocks away while walking home. You have no history of criminal activity, but you also have no alibi, no way to prove it wasn't you for - your bail is automatically denied and you're held for months waiting your trial.

Because you are still presumed innocent at the trial you aren't convicted of the crime, but 17 months have gone by, you've lost your job, the bank has foreclosed on your home, and your daughter's first memories of you that she'll take through life are of visiting you in jail.

Even worse, maybe you've said something in your blog that has really pissed someone off. They see a grainy video of the robbery on a Crime Stoppers commercial and call in your name out of spite. Again, you're found innocent in the end, but because you've been accused of a gun crime and without the means to prove your innocence at the bail hearing you spend months in jail.

[dream-king.livejournal.com]

You make a fair case however, given the example there has to be more evidence against me. I have to have a gun, not that I used it, but there has to be something that can actuall connect me, a motive.

I have been in the situation you described before.

Some friend and me went to the video store to rent a video one saturday night, this was when I was in high school, we bussed.

On the way home from the bus stop we were pulled over by cops, a video store closer to where I lived was robbed by 3 teenage men that matched our description, they started to question us and search us, of course they found in the backpack the videos from the other video store but still they really didn't have anything that they could have charged us on, they could have arrested us sure, but they would have 24 hours to release us or charge us and they had no evidence.

The point I am making is that for the abuse of power which you speak of, there has to be more going on, there has to be finger prints, DNA, an actual visible picture.

I would also add, in the case of someone who has a completely clean record and are arrested and charged for a violent gun crime, the fact that they have such a clean record is evidence enough that they are not a harm to society.

[mbarrick.livejournal.com]

Guns can be thrown away. With an illegally aquired gun there is no record that you owned it in the first place. Random acts of violence don't necessiarily have clear motives, etc. You make good points, and we could probably argue scenarios ad infinitum, but it's all tangental.

I take it that you agreeing that there is presumption of guilt at the bail hearing. The bill won't fly because it clearly violates the Charter. What bothers me the most is that Prime Minister would suggest even trying to pass legislation that violates the Charter. It doesn't speak well to his understanding of the rights and freedoms of Canadians

[dream-king.livejournal.com]

I think when one has already been convicted for previous violent crimes, when that person has been picked up again, the probability is that yes, they probably did do it.

Joe Average, or even someone who has had minner scrapes with Justice, should be given the benefit of the doubt, but a guy who has been convicted of violent crimes before, is a good chance that he did it.

You mentioned the charter of rights and freedoms, but no mention about personal responsability and obligations to society.

[mbarrick.livejournal.com]

Yes, but a person's history of convictions is how you argue that a person is a danger to society. That leaves the presumption of innocence alone. It is how it works now: you have a person accused of a violent crime, the prosecution argues that the person has a history of violent crime with his previous convictions as empirical evidence of a pattern of behaviour showing he represents a danger, therefore the person is denied bail. Whether you meant to or not, you've recognized the wisdom of the existing system.

The guilty person is responsible for their actions and has an obligation to society to pay restition for their crimes - no argument there. The issue is simply making damn sure the right person is being punished *before* the punishment begins. Presumption of innocence without prejudice is a free society's obligation to the individual.

[dream-king.livejournal.com]

that is where we differ,it is because of this history that the accused must prove that he is not a danger. Make the accused in such situations do the work. The prosecution should be busy putting together its case for actual trial, and not having to argue why the person with such a history should be denied bail.

To the regular individual you are right, however, someone of such a case should be exempted as they clearly, given their history have no care for such things.

A perfect example is this violent purse snatcher guy, who was out awaiting a trial for a violent crime committed last year.

[mbarrick.livejournal.com]

Yeah, but don't you see that you're just complicating things? The senario you are proposing breaks down like this:

1. Everyone is presumed innocent.
2. If a person can be shown to be a potential danger by past history, they are presumed guilty.
3. If a person is presumed guilty they can argue they are not a danger.
4. If successfully prove they are not a danger they are granted bail.

Whereas how it works now:

1. Everyone is presumed innocent.
2. If a person can be shown to be a potential danger by past history, they are denied bail.

The pre-trial bail hearing is not a trial. When I say the "prosecution argues" I don't mean that in the sense of a dramatic Perry Mason style TV trial. The Crown's "argument" is as simple as submitting the accused's record of previous convictions to the judge. It's no more complex than the initial step you are proposing.

[dream-king.livejournal.com]

At a certain point one has to make the difficult decision of the safety of the public v. the individual.

Governments do this all the time with land expropriation, which to many people is their whole life.

I know that it is a very slippery slope, just like post-9/11 anti-terror legislation.

But at what point should certain liberties be put aside for the betterment of all. I think that in this specific and well defined situation, we can turn a blind I to help society. It is a 3 Strikes law.

[mbarrick.livejournal.com]

I can respect that.

I don't agree, obviously, but it wouldn't be the only place we "draw the line" in a different place.

But don't you find it odd that I, the liberal, am arguing on the side of personal freedom and less government power, while you, the conservative, are arguing for less individual freedom and more government power?

[dream-king.livejournal.com]

Normally I am of the opinion that the government is the problem, however, since the judicial system is so lax on criminal behaviour, this is one situation in which I believe more government is needed, sadly...