COMMENTARY: The case for not naming those not yet convicted of crimes
In the business of talk radio, and opinion journalism generally, you’re always on the lookout for “talkers” — stories that are accessible enough to the public to be interesting to many people, and important enough to hold their attention. In early December, the York Regional Police, a regional service in the Greater Toronto Area, handed us a hell of a talker.
Frustrated by stubbornly high impaired driving rates, the York police had decided to begin naming-and-shaming those charged with impaired driving offences. Read what I said carefully there — charged with offences. Not convicted of them. York Region is far from the first to do this. Most of the other Toronto-area forces already do, at least selectively, and some have been doing so for years. But the decision by York to begin naming and shaming still provoked a lot of debate.
But it was, I think, the wrong one.
The debate we had was whether York should be identifying people who are merely accused of impaired driving, even though they haven’t been convicted yet. I had a lot of passionate responses from listeners on my show, protesting how outrageous this is, since accused drunk drivers are innocent until proven guilty. I confess I was baffled. We publicly name accused people — still innocent under the law — all the time. York Region was reversing a double exception: it was the rare GTA force that wasn’t already naming drunks, and drunks themselves were an exception to the norm of naming those arrested and charged for other crimes.
That’s when the absurdity of the entire debate hit me. This isn’t about whether we should be naming drunk drivers in one region of a million souls. The issue was actually vastly more fundamental. Should we be naming anyone accused but not yet convicted of a crime?
And I think the answer is no.
You might not believe this, given the above, but I’ve always thought of myself as a law-and-order guy. Tough on crime, from a family with a long history of police service. I still think of myself that way. But I also recognize that there are two major changes happening right now.
Google, for starters, has an awfully long memory. News is now permanent. Get yourself arrested and charged and there’s a very good chance that a record of that is going to be available online forever. But while the news may be effectively permanent now, a reporter’s attention to any particular case is not. The fact that you’re arrested has a much better chance of making the news, or a web database, than most of what comes next.
The charges could be dropped or stayed, you could be acquitted, you could be convicted of a lesser offence, but none of this is likely to be as accessible to the public. We already know that incarceration has massively negative impacts on one’s future employment prospects. I worry that a mere arrest, only the first part of a legal process all of us are owed, will become the only real public record of an offence, with potentially devastating impacts on one’s life no matter what comes after that arrest.
I’m not the first to notice this problem. The European Union and Argentina have enacted controversial “right to be forgotten” laws designed, in part, to address this very issue — making sure one’s first Google hit forever is not a report of some minor crime. It’s an awkward and imperfect attempt to address the real problem I’m describing, but it’s also complicated. My solution is easier — not reporting on mere accusations, and not publicly naming the accused, will solve this issue more effectively.
WATCH BELOW: Three things drivers need to know about new impaired driving law
There’s also the issue that our legal system is so dysfunctional that the dysfunction itself now acts as a form of extralegal punishment. Canadian courts are obscenely overloaded, clogged up with too many cases and massive delays. The causes of this are complex; I won’t get into them at length here. But it’s now routine to read about some accused criminal or another having a court appearance for routine matters and then, at the end, the next appearance is booked more than a full calendar year later. That’s absolutely insane. These people are not guilty yet under the law. They are innocent until proven guilty, but it might take them months or even years to get the chance to clear their name. In the meantime, they’re accused and unable to defend themselves pending a court system that is failing all of us, stranded in legal limbo. This itself is punitive, especially because the public will only know that they have been charged, and won’t wait around for a verdict years later before deciding if they are a bad guy.
The grim reality is this: “innocent until proven guilty” is a talking point we all pay lip service to, but most us don’t really buy into it. About a year ago, a man in my neighbourhood was accused of a serious crime — a very serious one. And I’m confident the Crown will make the case. But the mood in the community was that that’s just a formality. “String him up now” was the attitude of more than one person I talked to. When I pointed out that he wasn’t convicted of anything yet, I was treated as little better than an accomplice. Yes, it’s true the crime was terrible, involving children. But fundamental legal rights have to apply to everyone, all the time, or else they’re neither rights or fundamental.
To put it more bluntly: we would all demand the presumption of innocence for ourselves, while most would have no desire to extend that courtesy to others. It’s just not how we’re wired. We’re more inclined to form a posse than a jury. It’s our nature, and we need to recognize that nature, and work our way around it. Granting anonymity to virtually all accused criminals until they’re convicted is a recognition that despite our stated ideals, most of us really do assume that charged is as good as guilty.
WATCH BELOW: York regional police begins naming drivers charged with impaired driving
I haven’t come to this conclusion lightly. I have two major objections to my own point. The first: I work in the media. It’s our job to learn and report. Media companies, Global News included, routinely go to court to get more information on criminal proceedings. It is weird for me to be arguing for less information to be publicly released, and I’m sure my reporter colleagues are wondering what the hell I’m drinking as I write this (lukewarm Diet Pepsi, for the record).
The other issue is narrower but more important: you may have noticed I fudged one of my own bold declarations above just a tiny bit. I said we should grant “anonymity to virtually all accused criminals.” (Emphasis added.) I’m a pragmatist. There are sometimes very good reasons to release the name of an accused, and perhaps even a mugshot. It can be hugely helpful for law enforcement when they need the public’s help with their investigation, especially when there’s the possibility of more victims, including some that may still be in danger. And there will certainly be times when the police are looking for a suspect they don’t have in custody yet, and release details about that person to assist in their search. I can’t in good conscience argue that that’s a bad thing.
So what I’m proposing is that we withhold publicly naming those accused of crimes until they’re convicted, unless there’s a pressing law enforcement need to publicize that information. The courts would probably be best placed to make that call in the same way they already review search warrant requests.
It’s not a perfect solution. It couldn’t apply evenly to all accused, and there are genuine issues regarding free expression and freedom of the press. I am reluctant to make this proposal. I’m not sure I’ve entirely convinced myself.
But on balance, I think this is still something we need to do, and the sooner the better. And if you felt even the slightest unease when you heard York Region was going to begin naming and shaming accused drunk drivers, you probably agree with me, at least in part.
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