Outrage over Turcotte acquittal is misplaced

BY JAMES MORTON, OTTAWA CITIZEN JULY 12, 2011


Recent cases in Canada and the United States have caused an uproar because parents apparently guilty of murdering their children have been acquitted by juries.

In the most notorious Canadian case, Guy Turcotte, a doctor, stabbed to death his two children (the facts of the killing were not even contested) on being despondent over the break up of his marriage. Despite the fact the doctor was, at trial, articulate and coherent and able to describe killing his son, a jury found him not guilty on the basis he was not criminally responsible for his actions.

How can this be? Are juries foolish? Are judges blind? Or are defence lawyers truly able to make black seem white?

The concern is understandable and real. The killing of children by parents is justifiably repugnant to society.

As Lois Bujold said: "The dead cannot cry out for justice; it is a duty of the living to do so for them." How much more the duty applies when children die.

All that said, the outrage at the acquittals is misplaced. It is a result of a misunderstanding of what a criminal court does.

The recent acquittals are a result of courts doing what they are supposed to do - that can be changed, but only if the rules of criminal trials are amended.

A criminal court decides cases in a binary way: someone is found guilty or not guilty. And while a finding of "not guilty" is often taken as being a determination of "innocent" it is no such thing.

"Not guilty" includes everything from "very likely guilty" to "found innocent without a hint of wrongdoing."

That's because of the onus of proof in criminal law.

Traditionally the criminal law has held it is better for 10 guilty accused to go free rather than one innocent accused be found guilty. And so someone is found guilty only if the proof is such that there is no reasonable doubt of their guilt.

As a result someone who is probably guilty is not found guilty - indeed, a jury can be very suspicious and think an accused likely did do the crime but still acquit.

The rule for a "not criminally responsible" (often called insanity) defence is somewhat different and more onerous.

To decide that someone is not guilty because they were not criminally responsible the Court must conclude the accused has a "disease of the mind," and be "incapable of appreciating the nature and quality of an act."

Here the question is decided on the balance of probabilities. However, if a jury is only slightly more inclined toward a finding of in favour of an insanity defence an acquittal follows.

All this said, acquittals are fairly unusual in criminal courts. In Canada, of 100 adults who plead not guilty at the start of a trial only about four will be acquitted on all charges.

Moreover, when considering "not criminally responsible" verdicts, very few such verdicts come in the context of murder charges and the majority of cases involve schizophrenia; most people found "not criminally responsible" are clearly suffering a major mental illness.

Nevertheless, there is no doubt many people are acquitted despite the court feeling it quite likely they are guilty.

Is that appropriate? Ultimately it is a policy choice, but to my mind the downside of occasionally letting a guilty party go free is a price worth paying to protect the innocent.

To do justice we must avoid injustice, and convicting the innocent is a grave injustice.

James Morton teaches evidence at Osgoode Hall Law School of York University and is a past president of the Ontario Bar Association. He practises law in Ontario and Nunavut.