Legalese_09-42

Jeff Green | Oct 22, 2009

By Susan Irwin, Executive Director / Lawyer, Rural Legal Services

Before the state can take away a person’s freedom and lock them up for the commission of a crime, the guilt of the accused must be proved beyond a reasonable doubt. The concept of reasonable doubt together with the presumption of innocence is at the root of our criminal justice system, as it is in all other common law systems, such as in Britain and the United States. Yet even after centuries of appellate decisions and learned writings, the concept can be an elusive one.

Simply put, the Crown must prove its case such that no reasonable doubt as to the guilt of the accused can remain in the mind of the reasonable juror (or the judge if there is no jury) at the conclusion of the trial. In deciding whether the guilt of the accused has been proved beyond a reasonable doubt, the jury, or the judge, as the case may be, must begin with the presumption that the accused is innocent and only after due consideration of all the evidence can a verdict be given with the requisite “moral certainty” as to the accused’s guilt or innocence. Although the Crown doesn’t have to prove absolute guilt, it must overcome any “reasonable” interpretation of the evidence that puts into question or doubt the guilt of the accused.

That being said, “beyond a reasonable doubt’ means more than a mere possible doubt and therein lies the difficulty. While the concept or term is often used, it is not easily defined since individual perceptions as to what is “reasonable” and what can constitute a “doubt” differ. The problem frequently arises when the Judge tries to instruct the jury on the concept and law of reasonable doubt. Our appellate courts routinely deal with arguments, from both the prosecution and the defence that the trial Judge failed to properly instruct a jury on the application of the concept of reasonable doubt in a particular case.

The concept is made even more confusing by the fact that in civil trials involving disputes over such matters as contracts or personal injuries, the person suing has only to prove his or her case on “the balance of probabilities”, a much less onerous task. And, of course, there are all those courtroom dramas on television that seem to mix the two concepts according to the requirements of the plot.

The North Frontenac Little Theatre is producing an interesting play that deals with the whole concept of reasonable doubt, and the related issue that an accused is considered innocent until proven guilty. The play, aptly titled “Beyond Reasonable Doubt”, was written by the British author and playwright, Jeffery Archer, who has had some personal and well-publicized experience with the courts and the prison system following a criminal conviction.

In the play a woman terminally ill with cancer dies of a prescription drug overdose. Her husband, a prominent British criminal lawyer, stands accused of administering the fatal dose and is on trial for her murder. What makes this murder mystery/ trial drama of even more interest is the fact that Archer has cast the audience as the jury. During the first Act the audience, as jury, gets to observe the criminal trial and listen to the Judge explain the concept of reasonable doubt, while in the second, they are treated to an expose of what actually happened.

Rest assured you don’t have to be a lawyer to appreciate this examination of one of our key principles of criminal law, as it is a far cry from a lecture on criminal law. After all, without the so-called human drama, without all the human failings, there would be no need for criminal law, and no entertaining plays about murder and its consequences.

The play starts tonight, October 22, at 7:00 p.m. at Sharbot Lake High School and runs through until Sunday, October 25. Tickets are available at the usual places in the community and at the door. Be advised, though, that seating is limited as the set up of the courtroom for the play has reduced the number of seats available for the “jury”.