GUILTY… BUT NOT BEYOND A REASONABLE DOUBT?

A recent news story regarding a survey of Manitobans about the fairness of the justice system towards Indigenous people1 brought my mind back to a previous blog post that I had started but never quite finished. That post related to outcry of the justice system failures following the verdicts in the trials of both Raymond Cormier and Gerald Stanley.

While a large percentage of the mainstream media coverage focused on the race of the victims, one does not need to look very far for other high-profile cases in our province in which a suspected killer walked free, with the Crown failing to meet the burden of proof beyond a reasonable doubt. It was just last October where we saw Mark Edward Grant acquitted for the murder of Candace Derksen despite DNA evidence (albeit found by the judge to be flawed) linking him to the crime scene.2

Even more recently than that however was the case of John Cameron, a Winnipeg man charged with murdering his on-again, off-again girlfriend Michelle Stobbe after Stobbe was found dead with a gunshot wound to the back of the head. Defence counsel for Cameron argued that the gunshot wound was self inflicted and this was enough to convince the jury that there was a reasonable doubt as to Cameron’s guilt, despite the gunshot wound being to the back of Stobbe’s neck.3

Then there is the case of Kaila Tran. In 2012, Ms. Tran was stabbed in her apartment parking lot in broad daylight.4 While the person who committed the stabbing was convicted, police and the Crown alleged that the mastermind behind the murder was Tran’s boyfriend Drake Moslenko.5 He was charged with first degree murder six days after her death but those charges were later stayed when the Crown’s case fell apart.6

Back in 1989, former Winnipeg Blue Bomber Brian Gordon Jack was charged with the murder of his wife Christine Jack, whose body was never found.7 Because of Mr. Jack’s high profile as a former professional athlete, the case garnered quite a bit of attention at the time. After three trials, including several appeals, the Supreme Court entered a stay of proceedings, finding that a fourth trial would be unfair to Mr. Jack.8

There is also the well-known case of Barbara Stoppel, for which Thomas Sophonow was tried three times before being ultimately acquitted in one of Manitoba’s most famous cases of a wrongful conviction.9 The real killer was never brought to justice.10

Stoppel, Derksen, Jack, Tran, Stobbe, and now Tina Fontaine. Six females of various ages and backgrounds that are all victims in high-profile Winnipeg murder cases. These cases have a variety of different circumstances but share the fact that in none of these cases was the suspected perpetrator behind the offence convicted for the crime it was alleged they committed.

What these cases reflect is just how difficult it can be for the Crown (as well as the police who investigate) to establish proof beyond a reasonable doubt.

At the same time, the standard of proof beyond a reasonable doubt is integral to ensuring that no person who is innocent is convicted of a crime they did not commit. There is a relatively common expression that 'It is better that ten guilty individuals go free rather than one innocent person be wrongly convicted.'

This can lead to very difficult results to accept in many cases, particularly where an individual is likely guilty. I cannot imagine the difficulties that the jury members have faced in cases such as Tina Fontaine, where they may have strong feelings that Raymond Cormier is guilty but where there is insufficient evidence to establish proof beyond a reasonable doubt.

For those that feel the justice system has failed or the justice system is broken, then I am curious as to what they suggest replacing the current process? Surely, they cannot be suggesting that the standard of proof beyond a reasonable doubt be lowered. Our country has struggled with enough wrongful convictions already in a system with a standard of proof beyond a reasonable doubt. Anything less would all but ensure innocent people being convicted for crimes they did not commit.

So what other options are there? Perhaps some would recommend moving away from the current adversarial system to an inquisitorial system.

While I think that may be too drastic, one potential change to the current justice system that recently came to mind is a three-tiered verdict system. Those verdicts would be findings of not guilty, guilty beyond a reasonable doubt and a new option for triers of fact… that being guilty but not beyond a reasonable doubt (I am sure others will suggest that this is too drastic).

What exactly is a finding of guilty but not beyond a reasonable doubt? It would be a finding of guilt based on a balance of probabilities. It would be an option for the judge or jury to say, “I believe that based on a balance of probabilities, the accused committed this offence although guilt has not been established beyond a reasonable doubt.”

There would be no criminal penalties and the consequences would primarily be in the court of public opinion. I am sure that some may ask, if there are no criminal consequences, then what is the point?

I believe that even a finding of guilt (but not beyond a reasonable doubt) would satisfy many of the victims and their supporters in cases such as this or other cases such as sexual assaults, where a finding of guilt beyond a reasonable doubt is difficult to establish. I believe that victims and their families simply having an opportunity to have their story heard can often be one of the most therapeutic parts in dealing with the crime committed against them or their loved ones. A finding of guilty but not beyond a reasonable doubt is also an indication that their story has been believed by the trier of fact.

All too often, a finding of “not guilty” is viewed by many as a finding of innocence. This would establish that the trier of fact believed that the accused committed the offence but not enough to convict them criminally.

I am sure there are some negatives to be found. People may argue that individuals will carry with them the stigma of having committed an offence while not having been proven guilty beyond a reasonable doubt. Guilt (but not beyond a reasonable doubt) however has been established in court with due process. An accused may carry the stigma or being labelled a “murderer” for instance, but that label would be based on a trial where the evidence on a balance of probabilities suggests that they are guilty. I reiterate that they would not face criminal consequences.

The justice system can be about much more than punishing a party who is believed to have committed an offence. “Justice” can be about the process, one which involves an accused person standing trial for the offence that they are charged and one which allows for a finding of guilt based on a balance of probabilities.

Endnotes

1 Aidan Geary, “Manitobans split on whether justice system is fair to Indigenous people, Probe poll suggests”, CBC News (16 April 2018), online: <http://www.cbc.ca/news/canada/manitoba/manitoba-indigenous-justice-probe-poll-1.4621654>.

2 R v Grant, 2017 MBQB 176, 142 WCB (2d) 545.

3 Dean Pritchard, “Man acquitted in Michelle Stobbe murder trial after less than a full day of deliberations”, CBC News, online: <http://www.cbc.ca/news/canada/manitoba/john-cameron-second-degree-murder-michelle-stobbe-1.4387343>.

4 Mike McIntrye and James Turner, “The Crown’s shaky case: Why a first-degree murder charge was dropped in the slaying of Kaila Tran”, Winnipeg Free Press (17 July 2015), online: <https://www.winnipegfreepress.com/local/The-Crowns-shaky-case-316462901.html>.

5 Ibid.

6 Ibid.

7 Dave Baxter, “Hurting but hopeful”, Winnipeg Free Press (23 April 2017), online: <https://www.winnipegfreepress.com/local/hurting-but-hopeful-420172133.html>.

8 R v Jack, [1997] 2 SCR 334, 118 Man R (2d) 168.

9 Innocence Canada, “Thomas Sophonow”, Innocence Canada, online: <http://www.innocencecanada.com/exonerations/thomas-sophonow/>

10 Ibid.