A third option for more justice

On Tuesday we learned that Jian Ghomeshi’s last outstanding criminal charge of sexual assault was dropped by the Ontario Crown Counsel. Mr. Ghomeshi entered into a peace bond that will last for a period of one year, and apologized in court to his victim — Kathryn Borel, a former associate producer on CBC Radio’s Q. The developments came after his recent acquittal of numerous similar charges.

All of the above reminded me of a thought-provoking passage in Rankin’s Law, the autobiography of one of my heroes and a Vancouver giant, Harry Rankin. In it he points out one important difference between Canadian and Scottish law.

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Scottish rape crisis centres maintain that the ‘three verdict system’ benefits victims. The “not proven” verdict helps preserve the accuser’s credibility, since it means the jury does not disbelieve them despite lacking sufficient evidence for conviction.

Here in Canada, the courts have only two options for verdicts — guilty or not guilty. In order to deliver a guilty verdict, the court must be convinced beyond a reasonable doubt. This, of course, results in an individual being found not guilty even if the court believes the accused is probably guilty but the court hasn’t been convinced beyond a reasonable doubt.

By contrast, in Scottish law there are three possible verdicts: guilty, not guilty, and not proven. This third option, as Harry points out, “… allows for those cases where the prosecution has not proved beyond a reasonable doubt the accused is guilty as charged, even though he [or she] is certainly not innocent.”

Wouldn’t Jian Ghomeshi’s victims have been much better served if this third option —not proven — was available to the courts? It would have sent a very clear message to all that the victims were believed, but that belief just did not meet the very high level of proof required by Canada’s judicial system.

When the evidence presented is not sufficient to establish guilt beyond a reasonable doubt but is more than sufficient to establish guilt on a balance of probabilities, then the accused must be acquitted. But at the same time, we should also be able to validate the reality of the situation and acknowledge victims’ trauma.

This case is a perfect example where it would be fairer to be able to deliver a “not proven” verdict. By adding this third option, we would start moving away from a legal system and toward what Harry preferred and we all deserve — a justice system.

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