Blackstone’s formulation states: “It is better that 10 guilty persons escape than that one innocent suffer.”
This is a foundational principle of modern justice systems, but it has ancient roots. Even the vengeful God of the Old Testament told Abraham He would not destroy the city of Sodom for the sake of 10 righteous people should they be found there.
For this reason, the standard for finding criminal guilt is very high indeed. There are few people who are not familiar with the standard “beyond a reasonable doubt” but few really understand just how strict it is.
In my experience, the public is much more comfortable with the civil standard of “on the balance of probabilities.”
A great example of this is a case in Yorkton court last week in which Judge Patrick Koskie acquitted Nathan Labatt on charges of invitation to sexual touching and possession of child pornography.
Labatt admitted to police he had made an advance on a kid at a youth camp and possessed an explicit photo of that same young person. Because the kids at the camp were generally 14 or 15, Labatt assumed the youth was under 16, although he did not know that for certain.
It appears the Crown also assumed the alleged victim’s minority and prosecutors made the grave mistake of not introducing evidence of the child’s age during the trial.
As Koskie pointed out in his preface to the decision, that would have been as simple as having the alleged victim make a statement of his age. His parents could have also testified to it, or, they or the Crown could have produced a birth certificate.
Now, on the balance of probabilities, the kid was under 16 and Labatt knew it, hence a crime was committed.
That is certainly how people who commented on the story felt. It is even how the judge felt based on comments he made during the course of reading his decision. He said there was some evidence of age and that he had a reasonable suspicion that was the case, but that suspicion was not enough as it fell short of the criminal standard.
The onus is on prosecutors to prove the essential elements of a crime, beyond a reasonable doubt.
The essential element here was the age of the victim, plain and simple, because if he was 16 or older, there would have been no crime. It is possible a 16-year-old could have been attending the camp. No evidence was presented that the camp was restricted and even if it was, that would not necessarily stop an older child from being there.
Another case that recently raised public ire in Yorkton was an acquittal in the alleged attempted robbery last summer of the Scoops ice cream bar.
In that case, the critical missing element for Judge Brent Klaus was evidence leading from the ice cream place to the items of clothing found by the police canine unit behind the Farrell Agencies building then back to Scoops and the CI where the suspect was eventually arrested.
The essential element in that case was positive identification of the alleged robber. Although Klaus acknowledged the co-owner who had been alone in the store at the time was a very good witness, the identification was “simply too frail to meet the standard of proof that the case law requires.”
Reasonable doubt.
Klaus even mentioned what would have made the Crown’s case in his remarks.
“No further [dog] tracking was undertaken from the point where the clothes were discovered,” he wrote. “If the track had been continued and had led back around the store to Scoops and the accused, in my opinion, that would have completely closed the circle of identification.”
On the balance of probabilities, both of these guys could probably have been convicted, but on the outside chance they are innocent, because there is reasonable doubt, it is better they were not.
All of us would want to have that benefit of the doubt if we were in their position and the law requires that they were and that we would be given it.
Both of these acquittals turned on oversights in the one case by the Crown in the other by police. I suspect they will not be making the same mistakes next time.
