Guilt, in­no­cence and doubt

The Globe and Mail (Prairie Edition) - - GLOBE FOCUS -

‘Although the slo­gan ‘Be­lieve the vic­tim’ has be­come pop­u­lar­ized of late, it has no place in a crim­i­nal trial. To ap­proach a trial with the as­sump­tion that the com­plainant is telling the truth is the equiv­a­lent of im­pos­ing a pre­sump­tion of guilt on the per­son ac­cused of sex­ual as­sault and then plac­ing a bur­den on him to prove his in­no­cence. That is an­ti­thet­i­cal to the fun­da­men­tal prin­ci­ples of jus­tice en­shrined in our con­sti­tu­tion and the val­ues un­der­ly­ing our free and demo­cratic so­ci­ety.”

So wrote On­tario Su­pe­rior Court of Jus­tice Judge Anne Mol­loy this week when she ac­quit­ted three male Toronto po­lice of­fi­cers of charges of sex­u­ally as­sault­ing a fe­male of­fi­cer in a ho­tel room, af­ter a night of drink­ing at bars and a strip club. The com­plainant and the de­fen­dants agreed they had sex; the trial was about whether the sex could be proved to have been non-con­sen­sual, and there­fore crim­i­nal.

At a time when vi­o­lence against women is top of mind, and there’s ev­i­dence that sex­ual as­sault al­le­ga­tions aren’t al­ways fully ac­cepted or in­ves­ti­gated, Judge Mol­loy no doubt knew that her ver­dict would dis­please many. So she did some­thing un­usual. She de­voted a large part of that ver­dict to ex­plain­ing the foun­da­tions of crim­i­nal law: de­fend­ing the prin­ci­ple of the pre­sump­tion of in­no­cence, spell­ing out what proof beyond a rea­son­able doubt is, and as­sert­ing why these must be ap­plied in crim­i­nal tri­als, even those in­volv­ing an al­le­ga­tion of sex­ual as­sault.

She was not do­ing this for the ben­e­fit of the lawyers in court that day. Her de­fence of the law was aimed at a much wider au­di­ence.

Tak­ing away a per­son’s lib­erty is the most ex­treme thing the state can do. That’s why our crim­i­nal law is built on the pre­sump­tion of in­no­cence. If you’re ac­cused of a crime, you don’t have to prove your in­no­cence. You don’t have to prove any­thing, or even tes­tify in your own de­fence. The bur­den of proof is en­tirely on the Crown.

What’s more, to se­cure a con­vic­tion, the Crown has to clear a very high le­gal hur­dle: It must demon­strate that the ac­cused is guilty “beyond a rea­son­able doubt.” In a civil case, the stan­dard of “bal­ance of prob­a­bil­i­ties” – is one side just a bit more cred­i­ble than the other? – is enough. But in a crim­i­nal case, where con­vic­tion can mean a record and prison, the judge or jury must be­lieve that the ev­i­dence defini­tively proves the ac­cused’s guilt.

If the proof of­fered by the Crown isn’t strong enough to leave the judge or jury sure of guilt – if there are doubts – then the ver­dict must be one of not guilty.

All of these pro­tec­tions tilt our jus­tice sys­tem in favour of the ac­cused, and they are de­signed to, with good rea­son. It’s about pro­tect­ing the in­di­vid­ual against the over­whelm­ing power of the state, and guard­ing against courts li­able to be swayed by pub­lic opinion. It’s an at­tempt to en­sure that in­no­cent peo­ple are not wrongly con­victed, for any one of us could be that ac­cused in­no­cent.

We don’t think many Cana­di­ans would wish to be tried un­der dif­fer­ent le­gal prin­ci­ples. The sys­tem is not per­fect – and a lib­eral so­ci­ety wisely does not aim for per­fec­tion. But it’s con­sid­er­ably less im­per­fect than the al­ter­na­tives.

Judge Mol­loy quoted the Supreme Court case which lays out the in­struc­tions to be given to a jury, and which a judge gives to her­self, prior to reach­ing a ver­dict.

“Even if you be­lieve the ac­cused is prob­a­bly guilty or likely guilty, that is not suf­fi­cient. In those cir­cum­stances you must give the ben­e­fit of the doubt to the ac­cused and ac­quit be­cause the Crown has failed to sat­isfy you of the guilt of the ac­cused beyond a rea­son­able doubt.” And rea­son­able doubt, said the Supreme Court, “must not be based upon sym­pa­thy or prej­u­dice. Rather, it is based on rea­son and com­mon sense. It is log­i­cally de­rived from the ev­i­dence or ab­sence of ev­i­dence.”

In the case of the three ac­cused of­fi­cers, ev­i­dence, ab­sence of ev­i­dence and doubts about the Crown’s ev­i­dence led Judge Mol­loy to ac­quit. It wasn’t that she en­tirely be­lieved the men’s story, and she said as much. But pre­sump­tion of in­no­cence means that the ac­cused didn’t have to defini­tively prove that they didn’t do it. The Crown had to prove, beyond a rea­son­able doubt, that they did.

The prose­cu­tion did not fail be­cause Judge Mol­loy was cer­tain about ex­actly what hap­pened that night. On the con­trary, she ac­quit­ted the ac­cused be­cause the ev­i­dence pre­sented by the Crown was not strong enough to leave her sure of what hap­pened, or sure that what hap­pened was the crime of non-con­sen­sual sex.

Hence the ver­dict: not guilty. Judges don’t find peo­ple in­no­cent, and the ac­cused in this case didn’t prove them­selves in­no­cent. But un­der a le­gal sys­tem that pre­sumes in­no­cence in the ab­sence of a con­vic­tion, they didn’t have to.

For many peo­ple, this will be an en­tirely un­happy con­clu­sion. An al­le­ga­tion of rape was re­jected. And while the case of­fered a de­fin­i­tive ver­dict, it did not pro­vide de­fin­i­tive an­swers for ev­ery­thing that hap­pened that night. But a crim­i­nal trial can’t pro­vide all the an­swers. Some­times, the best it can do is to es­tab­lish that much is un­clear and un­cer­tain. And if don’t know for cer­tain, you can­not con­vict.

Af­ter the ver­dict, one Toronto news­pa­per ran a picture of the ac­cused on its front page, with a gi­ant, one-word head­line: “Scum­bags.” Maybe that’s true. Maybe it isn’t. But Judge Mol­loy, ap­ply­ing crim­i­nal law ac­cord­ing to long-stand­ing and nec­es­sary prin­ci­ples, wasn’t asked to rule on their moral char­ac­ter, or whether they should re­main po­lice of­fi­cers. Her job was to de­cide whether suf­fi­ciently per­sua­sive ev­i­dence had been pre­sented to find them, beyond a rea­son­able doubt, guilty of a crime. She could not.

Newspapers in English

Newspapers from Canada

© PressReader. All rights reserved.