Truscott Decision Released
In one of the longest decisions in the Court’s history, the Court has closed the book on the case of R. v. Truscott:
we have concluded that, while it cannot be said that no jury acting judicially could reasonably convict, we are satisfied that if a new trial were possible, an acquittal would clearly be the more likely result. Having regard to the highly unusual circumstances of this Reference, we have determined that the most appropriate remedy is to enter an acquittal.
Accordingly, in the words of s. 696.3(3)(ii) of the Criminal Code, the appeal is allowed, the conviction for murder is set aside and an acquittal entered.
The last judicial act of Chief Justice Roy McMurtry, with a distinguished bench of Doherty, Weiler, Rosenberg And Moldaver JJ.A. And an impressive use of the Court website as a document depositary.
This brings a sense of relief for me. Steven Truscott has been in the toils of the legal system all of my adult life. This judgment — the whole hearing, with its videos, published supporting documents and thorough careful arguments — is a fine and fitting end to the ordeal.
I note how carefully the court expressed the decision: “an acquittal would clearly be the more likely result.” Clearly… likely… not to mention “satisfied” and “possible” in the passage before.
My first awareness of the legal system was in reading The Steven Truscott Story in public school in the 70s–I honestly don’t remember which grade, but I think sometime between grade 7 and 9. Reading it made the class aware of the injustice of life and (yes indeed) the legal system. It has been important, then, to see this acquittal and to see justice finally served.
Simon,
But, despite all that the CA specifically declined to declare that he was innocent, and the way they did it makes me wonder exactly what the problem was, and why.
Assuming I haven’t forgotten some tidbit of criminal procedure – which is eminently possible – it seems to me there’s a glaring discontinuity in the Ont CA reasons. If I’m right, it’s a discontinuity – in fact a contraction – that the panel couldn’t have missed.
The CA panel said there was (1) a miscarriage of justice and (2) they ordered the entry of an acquittal rather than a new trial because it was its view that any jury trying the cause would most likely acquit.
However, they declined to go farther and to declare him innocent because, and here I’d best quote “it cannot be said that no jury acting judicially could reasonably convict”.
It seems to me that those two propositions would crash a truth-table. That is, if any jury acting properly would most likely acquit, then it is FALSE to conclude that any jury acting judicially could reasonably convict.”
Here’s the summary passage with one example of the problem in logic.
Now, the Bench was MCMURTRY C.J.O., DOHERTY, WEILER, ROSENBERG and MOLDAVER JJ.A. I’m not prepared to assume that all of them missed that discontinuity. And, if any of them saw it, then all of them know about it. So, they fudged the issue. Which makes me suspect that at least some of them wanted a statement that amounts to “Truscott was innocent” but not all, they didn’t want a dissent on anything, so they compromised on the fudge.
Comments? What have I missed? Am I parsing the judgment too finely? I haven’t yet read through the entire work.
Connie
The Ont CA declared Truscott Ivory Snow pure. It’s that missing 0.56% that he’ll have to live with.
For those who are too young or too old to remember, Ivory Snow advertised (does it still?) its soap as 99 44/100% pure.
Yes, and there is no way for the justice system to un-do the effect this has had on his whole life. Regardless, I am sure this is a relief to him and his family. The Harper family, unfortunately, will likely always be in limbo…
And the CA has now compounded the problem by stating, when one removes all the negatives, that a jury or judge acting properly COULD convict on the totality of the new evidence. I’d like to hear somebody who is a criminal law expert explain how that statement could be validly made. To me, if it is correct that the probable conclusion on all of the evidence is that Truscott did not kill Harper then, even remembering that probability doesn’t mean certainty, that probability has to amount to a reasonable doubt for criminal law. So, switching back to criminal law terms, since the CA said the proper interpretation of the evidence was that Truscott at least probably didn’t kill Harper, we can’t say that remaining possibility allows a jury or judge acting judicially (properly) to conclude that the evidence shows he did it “beyond a reasonable doubt”.
I don’t practice criminal law. There are criminal law experts on that Bench. But, logic is independent of legal expertise. Either I’m missing something or there’s an “Oh, boy” here.
David, for what it’s worth: my own take is that the court is drawing a careful distinction between “not guilty” and “innocent”. The court stated that “clearly” the “more likely” outcome of a new trial would be an acquittal. Translation: the court estimates, with a high degree of confidence (i.e. “clearly”), that the odds are greater than 50% (i.e. “more likely”) that a hypothetical new jury would find reasonable doubt. That is a long way from saying that on the evidence presented to them, no reasonable jury could convict, and an even longer way from saying that Truscott is factually innocent (on any standard of proof).
I do not read the court as having said, as you suggest, that “the probable conclusion on all of the evidence is that Truscott did not kill Harper”. The judges may individually believe that, of course – but for whatever reason they felt it was not open to them to say so.
Alex
Alex,
On reconsideration and after having spoken to a an expert or two, I’ve concluded that all the panel meant by para 787 is that (1) there were two valid choices that could be made on the evidence: guilty or not guilty; (2) the panel thought that the more probable result at any trial would be not guilty; and (3) in the circumstances, since the ONLY routes open to the panel in light of the miscarriage finding was a new trial or the entry of an acquittal and since a new trial was inappropriate etc in the circumstances the correct procedure was to enter the acquittal.
What that means is that the panel wasn’t commenting on the weight of the evidence at all, except to say that either verdict was legally permissible.
I assume a criminal law expert would see this.
I also think that at least a few on the panel were signaling, as much as they could in light of the Panel’s refusal to make a formal statement that Truscott was innocent, that they though he probably was on the evidence; that is, that the better interpretation of the evidence is that he was probably innocent. If that’s the case, then whatever doubt remains wouldn’t be something less than a reasonable doubt permitting a conviction. However, that’s tea leaf reading.
What remains puzzling then, to me, is paragraph 264.
[
The point they’re actually making, here, is that Truscott hadn’t introduced currently incontrovertible evidence that would make it certain that he was innocent. Let’s grant that that is so. However, it is not literally correct to say that Truscott “has not demonstrated his factual innocence”. Truscott accomplished that the moment the court concluded that the conviction had to be set aside. That’s because, as I understand things, he has the small matter of the presumption of innocence on his side again, even if the court had ordered a new trial. However, they didn’t. So, the panel having ordered that the conviction be set aside, the law will deems him to be innocent.
So, that the CA wouldn’t formally make the declaration that Truscott was innocent has nothing to do with his guilt or innocence because he didn’t need it for that purpose.
We can speculate on why they wouldn’t. It’s rather clear why the declaration might be relevant. No doubt you’ve heard or read that Mr. Robins – who has been appointed to decide the compensation is – is supposed to have said that
I find it difficult to believe that the former Mr. Justice Robins of the Ont CA would have said that Truscott “has not been deemed innocent”.
David
I’ve thought about para 787 some more – my sister and I took our nephew to see the third Pirates of The Caribbean movie. There was plenty of time to think.
Ive thought about the situation some more. Despite what Alex said and despite other pounding on my head – perhaps it’s because I’m missing the point – it still seems to me that that there’s some sort of inconsistency between para 787’s
and the rest of the reasons.
I suppose it’s because it seems to me that the second part of the sentence necessarily amounts to the assertion that, on a proper view of the evidence that exists, whatever doubt that one might have about Truscott’s guilt is a reasonable doubt. If so, one must acquit. I think that’s the tenor of their dismantling of the Crown’s case.
If that assumption is correct, then one can’t also believe that a jury acting properly could convict.
If that assumption is wrong, then one can have that belief. I think.
So, perhaps it’s just this. The tenor of the reasons strongly implies (to me) that at least a majority of the panel believed that any proper view of the evidence necessarily created a reasonable doubt. If that’s the case, then one can’t also say a jury acting judicially could convict. That’s the point. It’s not just the possibility that it could convict. It’s whether it could do so properly.
It seems illogical to assume that the panel missed this. So, I’m missing something.
It’s time to shut-up and leave it for the criminal law specialists.
David,
Think of paragraph 787 as if it were a report of poll results. Paraphrasing generously, this is what the court said: “In a survey of 1000 hypothetical jury pools, 65% found reasonable doubt. This poll is considered accurate to within +/- 3%, 19 times out of 20.”
In other words, given the practical impossibility of a new trial and the need for finality, they peered into their crystal ball and held that it was “more likely” (let’s say a 65% chance) that a jury would find reasonable doubt, and that they were pretty sure about their prediction (“clearly” suggesting a small margin of error). They are not saying that reasonable doubt is the only “proper” view of the evidence, just that it’s clearly the more likely one.
To be honest, I’m not sure why they didn’t go farther than that – I agree that a broader look at the reasons implies that the court thought it would be pretty darn difficult to come to any other verdict than acquittal. Maybe the court just felt uncomfortable stepping into the jury’s shoes.
As for factual innocence versus legal innocence, it seems to me that there’s a lot of careless use of terms in the media. There is no question that legally Truscott is deemed to be innocent once acquitted – there is no legal distinction between “not guilty” and “innocent”. The author of the quote you gave in your comment is simply incorrect – Truscott is indeed “deemed” innocent in the eyes of the law. However, a finding of “factual innocence”, as the court pointed out, is not something that our courts do.
Whether the amount of compensation should hinge on legal versus factual innocence is, I suppose, a topic for discussion. Personally, I am uncomfortable with the focus on factual innocence, as it seems to suggest that it’s OK for the state to imprison someone without a proper finding that they are guilty of a crime, as long as there’s some chance that the person did it anyway. That’s not a society I care to live in.
Alex
Alex
But a poll isn’t concerned with the validity of the individual decisions, just what the numerical count of of the number of Yeses and Nos.
If that’s all the CA meant, they’ve said the equivalent of saying that pollis show that 55 million Frenchmen find Jerry Lewis funny. This poll etc
That tell us what 55 million Frenchmen think likely think. It doesn’t tell us, though, whether Lewis is actually funny. And, it doesn’t actually tell us whether the court finds Lewis funny.
That’s because, as you know, satistical answers are only likelihoods, not certainties.
So, moving back to Truscott, if all that paragraph 787 means is what’s in your paraphrase, then it tells us nothing about what the panel believed is the better answer to whether there was reasonable doubt.
I suppose that all we can do is summarize the situation this way. For paragraph 787 to be a valid statement oflaw, the panel must believe that a reasonable person could conclude that there is no reasonable doubt that Truscott killed Harper – that he is guitly beyond a reasonable doubt. But, however, they believe that it is more likely than not that most reasonable people will hold that view.
So, the question becomes: can a reasonable person hold the view, in light of what the CA said about the evidence in this case, that there can not be a reasonable doubt that Truscott commited the murder – that is that it is beyond a reasonable doubt that Truscott comitted the murder.
The panel’s summary in 787 requires us to conclude that the panel thought so.
Maybe all we can do is ask the question this way. Putting 787 aside, do the reasons provide us with some support for the conclusion that the panel thought a reasonable person could hold that there is no reasonable doubt that Truscott killed her. Or being more explict, do the reasons indicate what the panel thought was the better conclusion, even the more probable valid conclusion.
Alex,
Answering my own question, the panel provides its answer at paras. 751-775, summarized at 775.
Here’s how the panel framed their answer
Then they outline these “reasonable possibilities” in paras 754-774. Then summarize.
So, let’s summarize what we have.
1. The Ont CA has told us that it believes that more than 50% of juries acting judicially would acquit. That means the CA believes that a finding that there is a reasonable doubt will be the probable finding.
2. The CA has also told us that, nonetheless – and this is a necessary corollary if they way it framed the first conclusion – that , a jury acting reasonably could convict. That means the jury would find that there is no reasonable doubt.
3. I think I’m correct, but not certain, that that necessarily means that the CA is reminding us that, for criminal law, a doubt which is only a possibility maybe but need not be a reasonable doubt.
4. The CA didn’t tell us what the qualitative measure of the strength of the less than probable doubt has to be in order for it to not be a reasonable doubt. I’m sure there’s something in existing criminal law jurisprudence, which I was once told about, but have forgotten due to the passage of time, that deals with this issue of “how much of a doubt” is enough for a reasonable doubt. It, obviously, can’t be put in statistical terms. I’m not going to guess – I’ll go look it up – beyond saying that I hope I don’t find anybody having used any flavour of “more than de minims“. That’s a bit of an inside joke for those of you who know what I too often carp about currently.
And last, I think,
5. The CA panel intentionally, carefully, tried to avoid telling us conclusively which way the panel leans on the answer to the questions in (3) – whether the remaining doubt is or is not a reasonable doubt.
Cheers,
David
[Sigh] … that should be “more than de minimus” @!!@$~^&** spelling checker