Monday 29 September 2014

Reasonable doubt in criminal cases

I practiced criminal law for twenty years and studied criminal law for two years as part of the four-year criminology program in which I was one of the students taking those courses at the University of Toronto. I also studied Abnormal Psychology at the University of Toronto for a year.

In September of this year, a very important decision in a criminal case that was heard in Canada was arrived at and the importance of the expression—‘reasonable doubt’ played an extremely relevant part in the decision as it does in many criminal cases. I will tell you of that case later in this article.                

The Supreme Court of Canada wrote a fine interpretation of the expression ‘reasonable doubt in a case it heard seven years ago in R. v. Lifchus. The court defined that term in the following manner;  

“A jury must be provided with an explanation of the expression “reasonable doubt”. This expression, which is composed of words commonly used in everyday speech, has a specific meaning in the legal context. The trial judge must explain to the jury that the standard of proof beyond a reasonable doubt is inextricably intertwined with the presumption of innocence, the basic premise which is fundamental to all criminal trials, and that the burden of proof rests on the prosecution throughout the trial and never shifts to the accused.

The jury should be instructed that a reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice.  A doubt is a doubt based on reason and common sense which must logically be derived from the evidence or absence of evidence. While more is required than proof that the accused is probably guilty, a reasonable doubt does not involve proof to an absolute certainty.  Such a standard of proof is impossibly high.  Certain references to the required standard of proof should be avoided. 

A reasonable doubt should not be described as an ordinary expression which has no special meaning in the criminal law context, and jurors should not be invited to apply to the determination of guilt in a criminal trial the same standard of proof that they would apply to the decisions they are required to make in their everyday lives, or even to the most important of these decisions. Nor is it helpful to describe proof beyond a reasonable doubt simply as proof to a “moral certainty”. As well, the word “doubt” should not be qualified other than by way of the adjective “reasonable”.  To instruct a jury that a “reasonable doubt” is a “haunting” doubt, a “substantial” doubt or a “serious” doubt may have the effect of misleading the jury. 

Lastly, it is only after proper instructions have been given as to the meaning of the expression “beyond a reasonable doubt” that jurors may be advised that they can convict if they are “certain” or “sure” that the accused is guilty.  The model charge set out in the reasons may be useful but any charge which is consistent with these principles will suffice regardless of the particular words used by the trial judge.                                                     

Judges and juries alike when considering the expression, “proof beyond a reasonable doubt”, must use those words in their ordinary, natural every day sense. There isn’t one of us who hasn’t said, “I’ve got a doubt about that person.”  There isn’t one of us who doesn’t have a notion of reasonable doubt about someone we know or have heard about. That, too, is a perfectly ordinary concept that embraces us in our lives.                                        

It is difficult to think of a more accurate statement than that which defines reasonable doubt as a doubt for which one can give a reason, so long as the reason given is logically connected to the evidence.  An inability to give such a reason for the doubt one entertains is the first and most obvious indication that the doubt held may not be reasonable.     

A person making the decision as to the guilt or innocence of an accused person cannot simply arrive at a decision of innocence because he or she doesn’t think that person is capable of committing such a crime. Police officers, lawyers, judges, prosecutors, doctors and religious leaders, etc., commit crimes just as the average citizen does and they have been convicted of their crimes.

The onus rest upon the prosecution to prove the guilt of the accused beyond any a  reasonable  doubt  is inextricably linked to the ‘presumption of innocence’.  Jurors must clearly understand the meaning of the term ‘reasonable doubt’ since it is of fundamental importance to our criminal justice system.  It is one of the principal safeguards which seek to ensure that no innocent person is convicted.  The Marshall, Morin and Milgaard cases in Canada serve as a constant reminder that our system, with all its protections for the accused, can still make tragic errors. All three had been convicted of murder and later it was established that others had committed the crimes.  A fair trial must be the goal of criminal justice.  There cannot be a fair trial if jurors do not clearly understand the basic and fundamentally important concept of the standard of proof that the prosecutors must meet in order to obtain a conviction.

A judge or a jury may have a strong suspicion that the defendant committed the crime but a strong suspicion is not evidence that he or she committed the crime as it is only a guess and a defendant cannot be convicted simply based on a suspicion of the judge or jury hearing the case. More is needed  to conclude that the defendant committed the crime.

In some jurisdictions, most notably the United Kingdom, the position appears to be that there is no need to define “reasonable doubt” beyond telling jurors that they cannot convict unless they are “sure” that the accused is guilty.  Indeed, some very eminent jurists have espoused the view that, because the words “reasonable” are readily understood by jurors. 

The problem with this concept is; how do you explain to a jury what involves being unsure about the guilt of a defendant. In a United States Supreme Court decision, it held that the expression “reasonable doubt” should be fully explained to the jury.  When a case is heard by a judge alone, he too must explain how he reached his decision and if found not guilty, he must explained why he arrived at his decision to acquit on the premise of reasonable doubt.

Ordinarily even the most important decisions of a person’s lifetime are based upon carefully calculated risks.  They are made on the assumption that certain events will in all likelihood take place or that certain facts that have taken place are in all probability true.  Yet to invite jurors to apply to a criminal trial the standard of proof used for even the important decisions in life runs the risk of significantly reducing the standard to which the prosecution of the defendant must be held.

If a judge or jury thinks the defendant in all probability committed the crime but there is a slight doubt that he did, then the benefit of that doubt must be given to the defendant because until the trial is over, the defendant is presumed to be innocent.  

A “reasonable doubt” is “a doubt for which one must give a reason, so long as the reason given is logically connected to the evidence. Ways that can be established is if the evidence shows that the defendant was nowhere near the scene of the crime and can prove it or alternatively, he has provided an airtight alibi.

And now, I will take you to main case I told you about earlier in this article that goes into the reasons raised with respect to the issue of reasonable doubt. 

The two defendants is this particular case are two Toronto-area physicians, one a plastic surgeon, the other a family doctor. They were charged with three offences; administering a drug with intent to stupefy, sexual assault and gang sex assault in a February. 12, 2011, assault on a woman, one of them whom she knew from attending medical school with him. One of the doctors was also charged with intent to stupefy and sexual assault in another sexual attack in 2003 on a different woman, who came forward after the pair’s arrest drew significant media attention. Dr. Amitabh Chauhan and Dr. Suganthan Kayilasanathan were accused of drugging and then sexually assaulting the then 23-year-old woman in a hotel room after a night of drinking and dancing at a Toronto club.

Gang sexual assault trials, where so-called stupefying drugs are alleged to wipe the memory of the alleged victim, is not an uncommon phenomenon. The allegations alone conjure up a terrifying vision: A man slips something into a woman’s drink at a bar or party, she suffers a blackout and is left with only flashes of remembrance, often where she is physically unable to resist the assault being carried out upon her by two or more men. Of course such assault can be carried out by one man alone.

If these two doctors were to be convicted of any of those three crimes they were charged with, their medical careers would be over permanently.

The second woman who claimed she was assaulted by one of the doctors in 2003 testified against the same doctor in the current trial. Similar fact evidence is presumptively inadmissible because of its potential prejudice or misuse by a jury, though that is not an issue before a jury in the current case  because the doctors were being tried by Judge Julie Thorburn alone.

This sort of evidence is meant to show an accused person may either have engaged in similar conduct on other occasions or committed a similar offence before, but the risk is it may paint the accused as a bad person with a propensity for such bad behavior when in fact, he is reformed and not subject to returning to his old ways.

Similar fact evidence can be brought to the attention of a judge alone or a jury if the defendant in his attempt to say that he was not capable of raping a woman then claims that he has never raped a woman. That is when the prosecutor can then ask him about the previous rape he was accused of. It matters little if he was acquitted because his acquittal could have been because the victim died or refused to testify against him. A trial judge must be very careful in allowing similar fact evidence being entered into a trial because if he was wrong in doing so, it could result in the defendant’s successful appeal for a new trial.

The key problem with the young woman’s testimony was she has no idea if she was sexually assaulted or drugged by one of the doctors as she has always admitted, or if she simply had too much to drink, or if the slivers of memory of that night that she had were even real. As she put it with trademark candour, “It’s only a flashback I have and I don’t know if it’s for sure, if it’s just something that happened or if it’s something I dreamed up.” Further, both doctors said that she was a consenting partner during the sex.

The prosecutor wanted the judge to admit the woman’s testimony on the basis her symptoms in which she felt such heaviness that it was like she was paralyzed, symptoms which are consistent with the symptoms of the effects of date-rape drugs on other victims. However, I imagine is someone is really drunk, those same symptoms could appear.  She testified that it never occurred to her at the time she might have been drugged and she dismissed the possibility she’d been assaulted because her body felt normal.

Obviously this second woman’s testimony wouldn’t serve any purpose whatsoever to be used as similar evidence against one of the doctors at the current trial.

After Judge Thorton heard all of the evidence by the woman accusing the two doctors of drugging and raping her, she said to everyone in the courtroom, that after meeting a few times and exchanging several emails  which had a "jocular and social tenor" the current accuser planned to meet Chauhan for drinks late on the night of February 12, 2011, and learned an hour before they met, that his friend, Kayilasanathan, would be joining them. The three of them had a few drinks at a hotel bar, then a few more at Kayilasanathan's hotel room before going to a Toronto club, where surveillance video showed them "drinking alcohol, socializing and dancing.

The woman claimed that shortly after having a drink at the club, she became unable to see and had “intermittent visual and auditory flashes.” The trio then returned to the hotel where the woman claimed she was unable to move, enabling both doctors to allegedly sexually assault her.

Judge Thorburn noted that video from the bar did not appear to show either of the accused placing anything into the drinks and that video surveillance from the hotel parking lot and lobby appeared to show the woman having no difficulty walking or controlling her physical movements.

She said the woman and the two doctors “willingly consumed a considerable amount of alcohol that evening and early the next morning” and that there was no evidence to corroborate the woman's testimony that she was drugged or sexually assaulted.

Now here is an interesting couple of facts to consider. First, she went to a hospital but they don’t have a rape kit in that hospital But even if they did and the sperm of both men were inside the woman, it would only show that they has sex with her, which they claimed was consensual. Further, they didn’t even deny having sex with her. The simply said that they didn’t rape her. 

Now if the judge was convinced that she was so inebriated that she couldn’t know what was happening to her, then that is a crime in Canada and probably elsewhere also. However judging from her remarks about what she saw in the video, it was probably conceivable in her mind that the woman knew what she was doing when the two men were having sex with her.

Judge Thorburn said that even if the woman did not or could not consent to a sexual encounter due to her condition, the two doctors could have thought she did. That is a time when the issue of consent gets real sticky. It all comes down to the credibility of the woman and the two defendants.  If these two doctors were stoned out of their minds, it may be believable that they misunderstood what the woman was saying. Thorburn said, “There is an air of reality to the accused's claim that they had an honest but mistaken belief that (the woman) consented to the sexual encounter.” The toxicologist testified that although consuming a large quantity of alcohol in a short period could result in an alcoholic blackout, a third party might not be aware that an individual in such a condition was not in full command of her faculties. However, being drunk and misinterpreting what someone is saying as a defence has the same legitimacy as a drunk driver who says he didn’t realize he was driving his car. ZILCH! There is a responsibility on all of us whether or not we are sober or impaired to take care that we don’t harm anyone in either of those two conditions. Back in 1964, I was asked by a lawyer to investigate a murder that his client was accused of committing.  His defence was that he had mistaken a woman at his kitchen window as a burglar attempting to open the window. He strangled her and it was later established that he was very drunk at that time. The murder charge was withdrawn and he was recharged with manslaughter of which he was convicted and sentenced to prison for five years.

The woman claimed Chauhan engaged in vaginal and anal sex with her, which he denied, and that Kayilasanathan sexually touched her which he may have done with her consent.  Again as I said earlier, it came down to credibility and reasonable doubt. The men were acquitted of the charges.

Reasonable doubt obviously played an important part in this trial and in cases where the evidence of the accuser is shaky at best, it should play a very important part of a decision arrived at, which it in this case, it did. 

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