The National Post
Tuesday, June 29, 1999

Set the clock on criminal charges

There are powerful reasons for establishing a statute of limitations

by Edward Greenspan

While statutes of limitations are firmly entrenched in the United States and throughout continental Europe, there are no time limitations on the laying of most criminal offences in Canada. Americans take statutes of limitations for granted because they have been part of U.S. law since as early as 1652. Barry Tarlow, one of the United States' foremost attorneys, wrote to me after the Gerald Regan trial (the case of the former Nova Scotia premier who was acquitted of sex-related charges last year) saying he was astounded that there was no statute of limitations in Canada.

Countries that have statutes of limitations are far from soft on crime. They don't like criminals better than we do. But there are powerful reasons for placing time limitations on the laying of criminal charges which are viewed in many countries as fundamental.

Due to the passage of time, objective evidence is lost. Accusers explain away gaps or inconsistencies in memory by saying it happened a long time ago, even though the delay in bringing the prosecution is their fault. As a result, the accused's right to a fair trial is undermined and the risk that innocent people will be convicted is ever present.

It is fundamentally wrong to force people to defend themselves against grossly disproportionate prosecutions of ancient allegations.

It is unjust to prosecute and punish people based on present social and moral values that may not have applied at the time of the alleged offence.

Without a statute of limitations, the judicial process can be politicized to prosecute only certain "hot button" offences, such as sexual assault. This leaves the door open to prosecuting conduct that would not have been viewed as criminal at the time it occurred.

Perhaps the most obvious reason for statutes of limitations is to protect accused persons from being forced through trials that are inherently unfair because evidence is lost or damaged over time. In long delayed cases, witnesses have scattered or died or their memories have faded. The ability to mount a defence is undermined by the loss of records and physical evidence. As time passes, people are more and more vulnerable to false claims, inaccurate results and erroneous convictions.

On this issue, opponents of statutes of limitations argue that the passage of time affects the prosecution's ability to prove its case as well as the accused's ability to defend, so that there is some rough equity between the accused and the prosecution. But this argument is profoundly and dangerously flawed. The accuser isn't on trial. He or she is never at risk.

When an alleged crime is reported in a timely fashion, there is objective evidence available to both the police and the accused. Clothes can be recovered and injuries (if any) can be examined. If the accused was not at the scene of the crime, he or she can present alibi witnesses whose memories are still intact.

Where allegations relate to the distant past, objective, corroborative evidence is almost invariably lost. As a result, juries must decide guilt or innocence based on the most unreliable criteria, such as the performance of the alleged victim and the accused on the witness stand. The fate of the accused depends almost entirely on the demeanour of the witnesses -- whether they "look like liars" when they testify. This is a notoriously inaccurate way of determining true guilt, which inevitably results in false convictions.

While the constitutional right to be presumed innocent dictates that the accused must be given the benefit of the doubt, the reverse is often the case in a trial on ancient allegations. When an alleged victim testifies about an event that occurred in the distant past, the gaps and inconsistencies in his or her story can be explained away as being the result of an understandable loss of memory. The passage of time produces a perverse result: The accuser -- not the accused -- gets the benefit of the doubt.

The alleged victim also gets the benefit of being vague about time. As a result, the accused must defend him or herself in relation to an incident that is alleged to have occurred many years ago over the course of, say, 14 months. It is virtually impossible for an innocent person to present an alibi defence in this circumstance. Can you remember where you were every day over a 14-month period 40 or 20 years ago? Can anyone? No one should have to answer such a question in order to avoid a criminal conviction, yet this kind of question is routinely asked in Canadian courtrooms.

The travesty is that it is the innocent accused who suffers the greatest prejudice from the loss of evidence. It is evidence that helps to demonstrate the truth. When evidence has been lost, destroyed or damaged, the truth is obscured, and it is the innocent accused who suffers. Yet he or she did nothing to create this unfairness. Why should the innocent accused be forced through an unreliable trial in which he or she is more likely to be convicted through the lack of evidence than through the availability of evidence? That is why most civilized nations have statutes of limitations.

Preventing false convictions is in itself a convincing reason for statutes of limitations, but there are also broader notions of justice that have caused most Western nations to establish such statutes, which go beyond guilt or innocence. Our criminal justice system should also be committed to ensuring that prosecutions are fair, balanced and proportionate. Stale-dated prosecutions are, by their very nature, unfair, unbalanced and disproportionate. There comes a point in time when allegations are so old that it is fundamentally wrong to allow charges to be laid, even if the allegations may be true.

The initiation of a criminal prosecution is an extremely grave exercise of state power. When a charge is laid, the accused suffers enormously, regardless of whether he or she is ultimately convicted or acquitted. If convicted, the accused faces the greatest sanctions that the state can impose on its citizens -- the loss of liberty. Thus, there must be a compelling justification for every prosecution. In the case of some crimes, the justification that once existed for a charge is totally disproportionate with the negative impact of a charge. As time passes, and the offender avoids the mistakes of his past and gets on with his or her life, the stigma and disruption of a criminal prosecution become increasingly disproportionate to its objectives. The person you are today is not the same person you were 21 or 41 years ago.

The United States and continental Europe have recognized that there is a point at which it becomes simply too late to lay a criminal charge because the exercise of state power to prosecute is no longer proportionate to its goals. The principle of proportionality is applied through a graduated system of limitation periods, in which the length of the limitation period increases with the seriousness of the offence. For example, there may be a limitation period of six months for minor charges, three years for more serious charges, and six years for the most serious charges. Murder is an exception -- there is no time limitation for it anywhere in the world.

Very importantly, there is another exception. Time limitations also do not apply where an accused has fled, been out of the jurisdiction, is hiding in the jurisdiction, or has prevented the victim from complaining to the police. So the clock does not tick for people who have forfeited the right to time limitations.

Even in Canada, the Criminal Code partially recognizes that the justification for prosecuting offences erodes over time because there is a six-month limitation period for some of the most minor charges. The primary reason for this is not to protect the right to a fair trial. It is unlikely that a trial on charges laid seven or eight months after the alleged offence will be less fair than where the charges were laid within six months. Rather, the limitation period is in place because there is a recognition that, even if a minor offence has in fact occurred, it would be improper and disproportionate to commence a prosecution more than six months later. Yet we have not extended this logic beyond some minor offences.

While our Criminal Code has no time limits, except in relation to such minor offences (and, oddly, the major offence of treason), there are multitudes of limits and rules for commencing civil actions. We have embraced time limits for lawsuits where private parties are fighting over money, but we have not in criminal cases where liberty is at stake.

One of the purposes of statutes of limitations on civil action is to prevent people from being judged today based on yesterday's standards. Social and moral values change over time. Is it fair to prosecute someone based on today's beliefs, even if he or she had no guilty mind by the standards at the time of the alleged offence? Should notorious hockey elbow-man, Gordie Howe, spend the rest of his life worrying that he will be charged for events in the '60s or '70s, now that our criminal courts have recently found players like Dino Ciccarelli guilty of assault for their conduct on the ice? Should former prime minister John Turner have to worry forever that he may be charged for patting the bum of Liberal party president Iona Campagnolo in 1984?

Usually, historical allegations brought to court are sexual in nature. This is no coincidence. Sexual politics have been given the highest priority in our culture and, as a result, our criminal justice system has been deeply affected. People are being prosecuted for ancient allegations of minor sexual misconduct, such as unwanted kisses from the 1960s. This brings us to perhaps the most important reason favouring statutes of limitations. They diminish the totally improper influence of socio-political trends on our criminal justice system by applying fixed time limitations to all offences regardless of their current notoriety. Statutes of limitations reduce the risk of politicizing the justice system.

American and European legislators and courts have long recognized that statutes of limitations are fundamental to the criminal law. Canada has recognized that time limitations on civil actions are essential. In order to protect our basic principles of justice and the community's sense of fair play and decency, it is high time that Parliament introduce a comprehensive statute of limitations for criminal charges.

Edward L. Greenspan, Q.C. is senior partner with the firm Greenspan, Henein and White in Toronto. He represented Gerald Regan in the recent trial.

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