Not guilty or innocent. Which is it?

The Ontario Court of Appeal appears to have closed the door on the concept of a third verdict in criminal trials to allow wrongly convicted persons to be declared ‘factually innocent’, by saying that the move could degrade the meaning of the words ‘not guilty’ which could then have a detrimental effect of persons acquitted of criminal offences. Let me give you an example.

John Doe is accused of murdering his wife who was found with a crushed skull at the bottom of the stairs leading to the basement of their home. The time of her death was determined to be at two in the afternoon. There are two witnesses that can testify that he was on an overnight camping trip with them at the time of the death of his wife and that they and John went to his home the next day and discovered John’s wife at the bottom of the stairs and called the police.

At the trial, the prosecutor (assistant crown) argued to the judge that John’s two friends are capable of lying to the police to protect John. There was an independent witness, (a game warden who met them at their campsite and remembered John being there but three days before the trial, he was killed in a car accident. The judge wanted to believe the two friends who gave their testimony but he is aware that one of them swore falsely on an affidavit and his credibility is suspect. He is unaware that there was an independent witness because the lawyer for John couldn’t even mention that fact unless the witness was testifying in court, which in this case, he couldn’t because he was dead.

The trial judge has options in determining the guilt or innocence of the accused. He can conclude that he has doubts about John’s innocence but the fact that he has doubts is enough to declare him not guilty. The fact that he has doubts means that the prosecutor hasn’t satisfactorily convinced him that John is guilty and that is why he found him not guilty.

John’s lawyer is convinced that John is truly innocent because he spoke with the game warden and after showing him John’s picture along with other pictures of other people; the game warden said he remembered John because he told him some funny jokes. John really was innocent. He was 200 miles from the scene of the murder when it occurred.

Because John was found not guilty ( or as the judges say in Scotland, ‘not proven’ ) He was set free. Meanwhile, everyone knows that he was found not guilty but they don’t know about the independent witness who could have established that he was truly innocent. When he meets women after that, some may remember him as the man who was charged with murdering his wife and was merely found not guilty.

Lots of criminals are found not guilty because they are given the benefit of reasonable doubt (and rightly so) but in actual fact, they are guilty. As an example, the not guilty verdict in a criminal case could have been arrived at because the sole witness who was going to testify against the accused was shot to death a week before the trial.

The accused was charged with conspiracy to commit murder and the only witness to testify against him was part of the conspiracy but he was given immunity if he would testify against the accused.

Suppose the man who was going to testify against the accused had a personal grudge against the accused and a week before the trial, he was shot to death in a drug deal that had gone bad and the accused had nothing whatever to do with the accused as he was in jail while waiting for his trial. Notwithstanding that, anyone reading the paper stating what took place at the trial might conclude that the accused must have had a hand in the killing of the witness who was to testify against him and therefore he must have been guilty of conspiring to commit the first murder, the one he was charged with. In actual fact, he really did order the death of the first murder victim but no one believed he was innocent because they think he probably also ordered that the witness was to be killed and the only reason why he got off was because the witness was dead.

Because the judge had nagging doubts about the guilt of the accused, he couldn’t declare him innocent and instead, only declared him not guilty, and for this reason, the man must live with the suspicion of others all his life. Had the judge declared him innocent, he would have literally got of Scot-free. That term means that if he was tried in Scotland, he could have been declared innocent, something his trial judge in Canada was not going to do.

Associate Chief Justice Dennis O'Connor and Justices Marc Rosenberg and Robert Sharpe of the Ontario Court of Appeal in a written judgment said;

"The most compelling reason (for not declaring the appellant innocent) is the impact it would have on other people found not guilty by the criminal courts – relegating them to a lesser class of persons who have benefited from the presumption of innocence and the requirement that the Crown must prove its case beyond a reasonable doubt.”

The court acquitted Mullins-Johnson in October 2007 after an emotional hearing at Osgoode Hall. Justice O'Connor expressed the court's profound regret for the Sault Ste. Marie native's ordeal.

The court went even further in its written reasons, saying the conviction was "wrong" and twice describing Mullins-Johnson as the victim of "a terrible miscarriage of justice."

Ontario's highest court did, however, use strong language to drive home the point that there is no evidence Valin's 1993 death was a crime, saying the arrest was the result of an "inexorable rush to judgment" The court added that "It is now clear that there is not and never was any reliable pathological evidence that Valin was sexually assaulted or otherwise abused during her short life and certainly not on the evening of her death," the court said. "While the cause of Valin Johnson's death remains undetermined, there is now no evidence to suggest it was the result of any crime."

That is about as close as the court was prepared to say that the appellant was really innocent of the murder of his young daughter.

In 1969, I was chosen to head an ad hock task force in Ontario to make a determination as to whether or not persons wrongfully convicted and sent to prison should be compensated if it is later determined that they were innocent of the crimes for which they were sent to prison. The members of the committee comprised of judges, criminal lawyers, law professors and legislators.

The major problem facing us was how innocence could be determined since innocence isn’t declared in verdicts in Canada by judges or juries. One of the judges in our committee told us that when he hears a case, he asks himself several questions. Was he somewhere else when the crime was committed? Was a crime really committed? Did he shoot the other man because the other man was running towards him with an axe in his hand and was only ten feet from him? When he was hunting off-season, did he do so because a game warden erroneously told him that the off-season hadn’t begun yet?

Once having satisfied ourselves that innocence could be established, we decided that the trial judge, for similar reasons recently stated by the Ontario Court of Appeal, could not announce it publicly.

On the other hand, we felt that the trial judge should make a determination of innocence if the acquitted man seeks compensation. The trial judge would be in a better position to make that finding for compensation purposes because he would have seen all the evidence, including evidence that may have swayed the jury in favour of a guilty verdict but was omitted because it was illegally seized in a defective search warrant.

We were aware that people could make a determination of an accused’s guilt or innocence by asking him if he ever received compensation. Obviously if he hadn’t received compensation, it would probably be because he wasn’t innocent. If that information became public, it could be detrimental to his interests as the years went by. People would say to one another, “If he really was innocent, he would have received compensation and since he didn’t, he must be guilty.”

There are a great many people who were truly innocent of the crimes they were accused of having committed. They had difficulty finding witness who could attest to their innocence but nevertheless, they were acquitted because the prosecutor didn’t have enough evidence to show that they committed the crimes.

Unfortunately, the way our system in Canada works, if an innocent man who has been wrongfully imprisoned, seeks compensation, the only way that he can satisfy the general public that he was truly innocent of the crime to which he was convicted, is if he is compensated by the government for his wrongful conviction and imprisonment.

One such man in Saskatchewan was sent to prison for life for allegedly raping and murdering a woman. He spent 23 years in prison. Finally the real rapist and murderer was found and the innocent man was given $10 million dollars in compensation. Now there was a man who was truly innocent.

On the other hand, there have been instances were wrongfully convicted and imprisoned men were compensated because the lab results that convicted them were not properly arrived at. There could be in the minds of others that maybe they still committed the crimes. Unfortunately for these unfortunate victims of wrongdoings, they may never be able to satisfy everyone that they are truly innocent because in awarding the compensation, the government doesn’t actually say they were innocent.

They say that the difference between rape and seduction is salesmanship. It follows that the difference between guilt and innocence is also salesmanship.
Unfortunately for the truly innocent person who is faced with the stigma of having been charged with the crime in the first place and subsequently acquitted, he must remove the stigma from his life as a doctor removes a bulbous wart. The knife the innocent man must use is his wit.