Why the police presume guilt.

I recently read an article that was complaining about the use of tactical teams to conduct search warrants. The author was worried about unfairness towards “legally innocent” people, and by that I think he meant that police tactics often run afoul of the presumption of innocence. I don’t think he should have been either surprised or upset - in my opinion, the police operate on a presumption of guilt, not a presumption of innocence, and doing so is completely consistent with Canadian legal requirements.

But how can this be? If the presumption of innocence is a “hallowed principle that lays at the very heart of criminal law”[1], how can the police operate on a presumption of guilt and not be at odds with the foundational tenants of our criminal process? 

Quite simply, the operational and legal realities of policing require a presumption of guilt. The police investigate and solve crime. It is their legislated duty to do so.[2] While the police are (or should be) a disinterested party vis-a-vis who gets charged with a crime, they very much have a stake in if someone gets charged with a crime. This necessarily requires the police, at some point, to vector in on a suspect and make efforts to collect evidence of that suspect's guilt. In order to bring an investigation to a successful conclusion, the police must adopt a presumption of guilt towards a specific person.

This will usually result in the police using some sort of lawful authority to further their investigation – for example they will arrest someone or execute a search warrant. At this point, the criminal process actually demands that the police act based on a presumption of guilt. Prior to making an arrest, the officer must personally believe the suspect has committed the crime for which the arrest is being made.[3] While this belief must be based on objectively discernible facts, it must also rest on a foundation of the officer's subjective belief.[4] Similarly, prior to obtaining a search warrant, an officer must possess a belief that an offence has been committed and that evidence of that offence exists at a given location.[5] While the search warrant standard does not require a belief of a specified party's guilt,[6] often times such a belief will be readily implied, if not directly stated, in an information to obtain a search warrant. This is not particularly upsetting; who would want the police to be able to take action against persons they thought were innocent?

We can also contrast the underlying assumptions of the presumption of innocence with the organizational culture of policing. The default belief that motivates the presumption of innocence is that “individuals are decent and law-abiding members of the community until proven otherwise.”[7] This can be readily distinguished against the “remarkable agreement on the characteristics believed to make up the police mentality... suspicion, conventionality, cynicism, prejudice, and the distrust of the unusual.”[8] The police officer, whose conception of order is shaped by persistent suspicion,[9] is “especially attentive to signs indicating a potential for violence and law-breaking.”[10] This mentality of suspicion is predicated on a presumption of guilt.

If we accept that the police are motivated by a presumption of guilt, then we must be aware of how that can impede later interactions with the trial process (which definitely operates on a presumption of innocence). This awareness is provided when we reconcile the different standards that the police and the courts must apply in their respective tasks.

For a police officer conducting an investigation, the relevant threshold of belief to enable investigative action is, for the most part, reasonable grounds to believe. For the courts, the threshold for conviction is one of proof beyond a reasonable doubt. Typically, these are understood as different points on a scale of how sure we are someone committed a crime, with the courts having to be “more sure” than the police officer has to be that an accused is in fact guilty. While that is true in a way, when we consider that the courts operate on a presumption of innocence, and the police are motivated by a presumption of guilt, we see that reasonable grounds to believe and proof beyond a reasonable doubt are actually completely different concepts.

Assessing “proof beyond a reasonable doubt” from a presumption of innocence is an exercise in confutation, a question of whether the evidence refutes the existing theory of innocence. An assessment as to whether or not the “reasonable grounds to believe” standard has been met, however, is an exercise in confirmation, a question of whether the evidence supports the existing theory of guilt. These are completely different formulas. 

Herein lies the source of much of the tension between police operations and the court; evidence is collected from a presumption of guilt, but must be analyzed from a presumption of innocence, resulting in a conceptual chasm that is not easily spanned. A police officer who approached an investigation from a presumption of guilt and acquired reasonable grounds to gather sufficient evidence to allow for charges is faced with the impossible task of watching the courts assess the accused's guilt based on an application of proof beyond a reasonable doubt from a starting point of a presumption of innocence. This requires the officer to replace what she believed to be true (the accused is guilty) with an assumption of what she knows to be not true (that the accused is presumptively innocent) and adding the dimension of legal guilt – a measurement of due process - to the equation; an impossible leap of perspective.

This is not to say that the trial process shouldn’t be animated by the presumption of innocence – it should be, and it being anything but is unimaginable in our society. However, it is inaccurate to believe, and unrealistic to expect, the police to act as if they are motivated by the same presumption. They are not and cannot be. 

The presumption of innocence is not entirely divorced from policing - it is the basis for the laws that constrain police activity, which are beyond the scope of this article. However, while the presumption of innocence constrains police activity, it is the presumption of guilt that motivates their investigations. Constraints and motivations are not mutually exclusive concepts, and they can co-exist, albeit not without some tension. But, this tension need not result in an antagonistic relationship. Rather, it should serve as a stabilizing force to keep the system in balance. These tensions ought to act as a mechanism to correct gradual overreach by the police while simultaneously anchoring the courts to the practical reality of society that the entire justice system serves.

*Note: I have not addressed the potential pitfalls of the presumption of guilt, the primary one being tunnel vision, and perhaps the secondary one being a view of policing as a competitive endeavor. These deserve consideration, but I will leave that to another day.

**For the full argument, see: Cyr K. 2015. “The Police Officer’s Plight: The Intersection of Policing and the Law.” Alberta Law Review, 52(4).

[1] R. v. Oakes, [1986] 1 SCR 103 at para 29.

[2] Royal Canadian Mounted Police Act RSC, 1985, c. R-10 s 18(a).; Police Services Act, supra note 13 s 42(1)(d).

[3] Criminal Code, RSC 1985, c C-46, s. 495. [Criminal Code]

[4] R. v. Storrey, [1990] 1 SCR 241, 53 CCC (3d) 316.

[5] Criminal Code, supra note 4, s 487.

[6] That is, a search warrant can be obtained even in the absence of a suspect being identified, as long as the evidence is believed to exist.

[7] Oakes, supra note 1 at para 29.

[8] Robert W. Balch, “The Police Personality: Fact or Fiction” (1972) 63 J. Crim. L. Criminology & Police Sci. at 106.

[9] Jerome H. Skolnick, Justice Without Trial: Law Enforcement in a Democratic Society, (New York: John Wiley & Sons, 1975) at 48.

[10] Ibid at 44 (emphasis added).