On Television

Definitions:

1 A system for converting visual images (with sound) into electrical signals, transmitting them by radio or other means, and displaying them electronically on a screen.

2 A device with a screen for receiving television signals.

Source: OED https://en.oxforddictionaries.com/definition/television

Television (TV), sometimes shortened to tele or telly, is a telecommunication medium used for transmitting moving images in monochrome (black and white), or in color, and in two or three dimensions and sound. The term can refer to a television set, a television program ("TV show"), or the medium of television transmission. Television is a mass medium for advertising, entertainment and news.

Source: Wikipedia https://en.wikipedia.org/wiki/Television

That is the classic and technical definition of television when it was first introduced, the technology to broadcast video in the way that radio was broadcast and the receiver (television set) to view the video on.

I was three years old in Sudbury when television was first available to the city.

CKSO Television History

The station was launched on October 25, 1953 by Sudbury businessmen George Miller, Jim Cooper and Bill Plaunt.[1] It was the first privately owned television station to launch in Canada, and only the fourth television station overall after CBC Television's owned and operated stations in Toronto, Montreal and Ottawa. Its original call sign was CKSO-TV. The station was a CBC affiliate, receiving programs by kinescope until a microwave relay system linked the station to Toronto in 1956. The station originally broadcast only from 7 to 11 p.m., but by the end of its first year in operation it was on the air from 3:30 p.m. to midnight.[2]

Source: Wikipedia https://en.wikipedia.org/wiki/CICI-TV (Redirected from CKSO-TV)

Although it was a few or several years before TV ownership became widespread enough that we had one I was old enough to remember first getting television. I guess one could call it our generation's “screen time” although we were not nearly as enamoured with it as people seem to be with “screens” these days. It was something that amused us when we were finished our homework and it was too dark to go out and play or early weekend mornings before we went to meet our friends. But overall we would much rather be out with our friends playing in the rocks along the creek or rail line near the slag dump, tossing rocks and watching the quicksand suck them up. Yes play at that time was not adult organized competitive activities but a time to use our imagination and learn to be independent.

At that time we had one channel which carried the CBC and eventually we got a CTV station. The next big thing was something called CATV or Community Antenna Television. This was the first iteration of cable television or Cable TV. A large antenna picked up the signals of the American networks that previously only southern Ontario could receive and they were distributed via coax cable to individual homes. This was the first version of Cable, no specialized or cable only channels just broadcast channels, from further distances and often a clearer signal than broadcast TV depending on where you lived.

At this point we essentially are still within the original definition of television which ties together the broadcast technology and the television set.

The next technological change started to change that. The introduction of the VCR meant one could watch content on a television set that did not originate with a TV broadcaster, mainly commercial movies and home movies shot on videotape. VCRs were later supplanted by DVD and Blu-ray players.

The cable companies that had been re-transmitting over-the-air (OTA) broadcast TV signals were beginning to receive these signals via microwave and satellite around the same time as competitors began transmitting TV packages similar to cable TV via satellite direct to the home.

This led to the next innovation and the elimination of the necessary link between TV broadcasters and television sets. Television sets no longer required an over-the-air signal to provide content to their owners as cable/satellite TV only channels started providing programming without any OTA broadcast facilities, their signals being delivered by cable/satellite TV providers.

Most TV watchers in urban centres now received their TV from cable (and in some cases satellite) TV providers without any outdoor antenna or infamous rabbit ears being used. Without the limitations of broadcast frequencies TV providers could provide unlimited numbers of cable only channels. These channels started out with higher quality content and without advertising to distinguish them from the free broadcast channels but soon they changed to channels full of reruns and cheaply produced “reality” TV with advertising. “Premium” channels without advertising and with higher quality content were then introduced at even higher prices. Of course, with control of the distribution of channels they could ensure subscribers paid for their channels that produced profits for them by including them in the packages people have to buy to get the channels they actually want.

At this point we have gone from free over-the-air television to fee for cable TV to cable TV with almost unlimited channels and unlimited price points for service and it appears unlimited room for customer dissatisfaction particularly in the United States and Canada.

The thing about paying more for a higher tier of cable television is that you are not actually paying to watch more television, just for more choice, most of which you are not interested in.

And then came “streaming”.

Streaming television (streaming TV or internet television) is the digital distribution of television content, such as TV shows, as streaming video delivered over the Internet. Streaming TV stands in contrast to dedicated terrestrial television delivered by over-the-air aerial systems, cable television, and/or satellite television systems.

Source: Wikipedia https://en.wikipedia.org/wiki/Streaming_television

With the Internet, companies and individuals could provide content to anyone with Internet access without having to build their own distribution network. You no longer needed to be a huge corporation with mega-millions of dollars of infrastructure to be in the TV business. Even individuals could distribute content via websites and later via YouTube and other similar online video platforms, and then came Netflix followed by a series of other streaming services and everything started to change

But first let's step away from talking about television distribution technology and look at the other half of the technology equation, what we used to call “television sets” now more often just called screens.

The first TV I personally owned was a 17” black and white portable TV I brought with me to Ottawa when I started working for the Library of Parliament. I spent more time listening to CBC radio than I did watching TV at that time. I believe about 50% of what I learned about the world in those days I learned from CBC Radio.

In the early days a 20 inch TV was a large screen TV. The largest conventional analog cathode-ray tube (CRT) TV we owned before making the big jump to a flat screen liquid-crystal display/LED-backlit LCD TV was a 36 inch huge and heavy television set.

Nowadays such TVs have gone the way of the dinosaurs. There are only two acceptable ways to watch TV, either on a 60 inch plus wide screen TV or on a two to three inch smartphone screen.

Your big screen TV is no longer just a television set but part of a home theatre system often with surround sound and of course comfy chairs.

We do have to admit we noticed a huge difference in picture quality when moving from analog TV on a CRT to high-definition digital TV on an LED/LCD TV. However we do not notice a large difference between different levels of HD, and when downloading content we often download the lower HD file because of size and time considerations. We also notice a large improvement in picture quality on old SD content compared to our old CRT screen TV. I personally do not understand the need for ultra-high-definition television, except to get people to upgrade to new 4K (or 8K) sets.

This all comes as part of a trend of people spending much more of their time at home for entertainment rather than going to concerts, theatre or movies, often called cocooning.

And part of this, of course, is the dominance of television as it has become in the “million channel universe”. So we return to our discussion of how television programs as we know them are distributed.

The problem with the proliferation of choice from the conventional providers' multiple tiers of cable television with increasing prices per tier, coupled with the addition of multiple streaming sources all with their own price points, is that you are not actually paying to watch more television, just for more choice, most of which you are not interested in.

Indeed we found ourselves in that situation. After upgrading to a higher tier to get a channel we wanted that was only available in that tier we decided we were paying for too many channels we did not watch. We cut back to the lowest tier available and to CRTC-mandated Skinny Basic Cable TV as soon as it was available. We later supplemented that with some carefully chosen theme packs that included they types of programming we wanted, primarily scripted drama as well as history and science programming. While many people criticized the CRTC's skinny basic cable requirement it certainly improved the value for money we were able to get from our cable TV provider.

We also had Netflix and we later added Crave/HBO Canada to our Cable package. We supplement that with free sources of programming available online. We are paying a total of about $100 for television programming, a considerable increase from the $00 for free over-the-air TV when it was first introduced.

However some people are going a different route, using traditional torrents to get programming at no cost or unauthorized free streaming sites often along with the use of VPNs.

Free TV' Android boxes finding their way into many Canadian households, study says

The devices come pre-loaded with software that makes it easy to pirate movies and shows, says expert

Forget illegal downloading; many Canadians are getting hooked on unauthorized streaming, according to a new study. This emerging type of piracy often involves a simple box running an Android operating system that's loaded with special software.

Connect it to your TV, and you can easily stream a vast selection of pirated movies and TV shows —even live television, including sports.

Dealers sell the boxes for a one-time fee, typically around $100, with the promise of "free TV."

Source: CBC News

 

People do this often in reaction to what they consider to be a broken system where watching everything they want requires subscribing to multiple channels or services just to get the shows they want while paying for access to shows they do not want to watch. But of course this alternative is unsustainable for everyone as nobody would be paying for the production of content.

Where do we go from here. We have to acknowledge the system is broken to a large degree because the major players in content production and distribution have huge investments in what is now essentially obsolete technology – the broadcast and cable distribution system, at least as far as most of what people want to watch.

What still dominates the television system (perhaps not for long) is scheduled programming on set channels pushed at the consumers rather than programming consumers watch when they want to. And because for some reason these channels must broadcast 24 hours a day the majority of programming is repeats or multiple variations on shows about flipping houses, visiting pawn shops, how to do home projects you are not working on at the moment, housewives of every city on the planet, etc. etc.. Of course every channel has a few worthwhile programs and even some very good ones, but never enough for 24 hours a week, 7 days a week and certainly not possible to have the programs on when it is convenient for everyone that wants to watch them to do so.

Television providers try to get around this failing of push technology by providing DVRs/PVRs or On Demand services but that is just a work around for a failed concept.

Consumers have the Internet . When they are looking for information they are used to going to the Internet and finding what they want when they want it. They are now expecting to be able to access their entertainment as easily and simply as they access information.

But let us take a step sideways and consider whether there is still a role for traditional scheduled TV that you have to watch when the distributor makes it available, and the answer is yes.

Originally TV was broadcast live and some things are still best when watched live. I am thinking of sports and breaking news in particular but live broadcasts of cultural events such as concerts and theatre would fall in that category as well. Nobody wants to watch old news so there will always be a place for cable news channels (although the might be broadcast via the Internet) and most people prefer to watch sporting events as they happen since knowing the result beforehand compromises (to put it lightly) the experience.

But for scripted drama programs, movies and documentaries people prefer to be able to watch when they have time. Even reality TV, for those fans of pawn shops, real estate flipping, watching other people cook or yell at aspiring restaurateurs, and overly dramatized dating shows, is more conveniently watched at the viewers choice of time.

For television series, in the old days of only network broadcast TV, you watched them when they were on. If you heard about a show from someone you had to start watching it mid season. Today's viewers want to watch series from the beginning of the series and even Cable TV On Demand services rarely allow for that, having only the current season available at most.

Streaming services are best suited to provide television to viewers in the manner they wish to consume it. But consumers, who are leaving traditional TV because they have to subscribe to TV packages and channels that include mostly programming they do not want to watch to get what they want, are faced with the same dilemma with streaming services, having to subscribe to multiple services to get all the programs they want and pay for access to programs they do not want.

So is there a solution. We have the technology. Having the will to make it happen is the issue.

The first thing I would like to see happen, in the Internet age of international access to information, is getting rid of regional distribution rights, in fact get rid of exclusive distribution rights altogether.

We have the technology for streaming services to know how many times an individual has streamed a particular episode or film, in effect how many products they have sold to each customer. Just like manufacturers do not restrict the sale of their products to exclusive retailers (perhaps with some exceptions) neither should content producers.

All streaming services should be able to provide all content to all customers with regulations in place to prevent price gouging of both the streaming service by the content producer and the viewing customer by the streaming service.

Streaming services would then compete by their interface, how customer friendly it is, and their pricing structure. Customers should be able to just purchase individual movies or TV series at a reasonable price and have access to whatever type of packages the streaming companies wish to offer in competition with each other.

The answer is simple but realistically, without a complete rejection of the system with everyone abandoning paid TV service for piracy, the powers to be are likely to settle for small incremental changes with eventually multiple streaming services replacing Cable TV as the dominant source of programming.

As incremental changes go, one thing I would like to see happen is a co-operative established among public broadcasters to share their productions internationally.

The role of public broadcasters is to tell their peoples' stories as well as to inform their people about the world. But it is not only their own people they should want to reach but the rest of the world as well. One way they can do that is by making content freely available on the Internet and the other is by making it available, as part of o co-operative effort with other public broadcasters to share programming with their viewers. That one effort by itself would make large amounts of high quality content available freely to viewers.

And what does The Fifth Column watch.

We are certainly not part of the cult of folks who seem to hate everything Canadian, particularly Canadian music, movies and television. It seems to be a matter of pride for them to hate all things Canadian. Many of these are the people Trump would welcome into his country with open arms and since they seem to worship the USA I am uncertain why they are still here.

Probably about half of what we watch is Canadian, primarily CBC, followed by British, particularly BBC, and other foreign shows, including some very good Americana cable network shows. We find most American broadcast network shows to be formulaic and uninteresting, but there are some notable exceptions.

Primitive vs Civilized Societies

As someone born in 1950 and raised and educated in a Eurocentric culture I learned early that civilized societies are intellectually, socially, and technologically superior to primitive societies. This despite the fact that the indigenous peoples of this land I was born on have for centuries had their own distinct languages, long tradition of passing down oral history, sophisticated social structures, and technologies well suited to the land they live on.

Reflection on actual facts indicates the reality is that the real difference between civilized and primitive societies is that one is based on trying to conquer nature while the other is based on living in harmony with it and only one by it's very existence threatens the future of the human species.

On Gender Identity

I was born in 1950 at a time when spouses were specifically excluded from rape laws and homosexuality was illegal. Homosexuality was only whispered about in “polite company” and people with a gender identity or gender expression that differed from their assigned sex did not exist, and by that I mean their existence was not acknowledged by “mainstream society”. In the early 1950s only 25% of women were in the work force and most of those were doing women's work, in female dominated occupations.

Things have changed a lot since then as far as women's work roles and the acceptance of gay people as fully accepted members of society, even the terminology has changed with “homosexual” going the way of “negro”.

Society as a whole seems to have a harder time understanding and accepting transgender individuals. I can understand how it can be hard, especially for members of a certain generation (mine), to wrap your head around what is essentially a very complex concept that is foreign to a generation born when males mere males and females were females and the roles were very strictly defined.

That in a way was the most difficult thing for me to get my head around. I spent most of my life belonging to movements that opposed the concept of sex role stereotyping, such as the idea that there was men's work and women's work, that women belonged in the caring occupations like nursing and teaching while only men were suited for heavy industry or the police or military. We essentially argued that the way you acted, or who you were, was separate from your sex. We did not consider the concept or gender identity as we would describe it today.

However when one thinks about it more deeply one realizes that people are individuals and the idea of separating sex and gender from identity as a way of defining sexual equality may be the wrong way of looking at it.

For some women being able to work in a non-traditional job may be what they need to be fulfilled. For some men it may simply be not being required to act in society as a stereotypical macho male.

But for other people there is a much bigger disconnect between their assigned sex at birth and who they are as human beings. For them being their authentic self requires them to live life as a different gender than the sex assigned to them at birth, in some cases requiring surgery to align their outer bodies with their inner selves.

What the rest of us need to understand and accept is that people live more fulfilling lives when they can be their authentic selves, while miserable lives, possibly leading to suicide, is a real possibility if people are not allowed to be their authentic selves.

The rest of us have a choice. We can play word and definition games telling people they are wrong about themselves and that we know them better than they do, or we can be decent human beings and affirm their existence as who they are.

Definitions

Gender identity is the personal sense of one's own gender.[1] Gender identity can correlate with assigned sex at birth, or can differ from it.[2] All societies have a set of gender categories that can serve as the basis of the formation of a person's social identity in relation to other members of society.[3] In most societies, there is a basic division between gender attributes assigned to males and females,[4] a gender binary to which most people adhere and which includes expectations of masculinity and femininity in all aspects of sex and gender: biological sex, gender identity, and gender expression.[5] Some people do not identify with some, or all, of the aspects of gender assigned to their biological sex;[6] some of those people are transgender, genderqueer or non-binary. There are some societies that have third gender categories. Source: Wikipedia

Transgender people have a gender identity or gender expression that differs from their assigned sex.[1][2][3] Transgender people are sometimes called transsexual if they desire medical assistance to transition from one sex to another. Transgender is also an umbrella term: in addition to including people whose gender identity is the opposite of their assigned sex (trans men and trans women), it may include people who are not exclusively masculine or feminine (people who are genderqueer or non-binary, including bigender, pangender, genderfluid, or agender).[2][4][5] Other definitions of transgender also include people who belong to a third gender, or else conceptualize transgender people as a third gender.[6][7] Infrequently, the term transgender is defined very broadly to include cross-dressers,[8] regardless of their gender identity. Source: Wikipedia

Cisgender (often abbreviated to simply cis) is a term for people whose gender identity matches the sex that they were assigned at birth. Cisgender may also be defined as those who have "a gender identity or perform a gender role society considers appropriate for one's sex".[1] It is the opposite of the term transgender.[2][3] Source: Wikipedia

Is American Democracy Fucked ?

So is the American political system completely dysfunctional.

I suppose the easy answer is to say they elected Trump so case closed, but of course it is much more complicated than that.

What advanced developed democracy cannot manage to keep it's government functioning.

The obvious answer should be “none” but of course we know that is incorrect.

Even countries that require months of negotiations after elections to form a coalition government do not let their governments shut down. They understand that government is more than just politics, that government is a good thing that provides vital services to the people. They have processes to allow the everyday work of government to continue while the politics is sorted out.

Take Canada for example. If a government cannot get its spending plan (in the form of an Appropriation Act) approved it is considered a loss of confidence in the government by the legislature and an election is called. However the Prime Minister and Cabinet (whom are all Members of the legislature) retain their positions and what are referred to as Governor Generals' Warrants are issued to fund the day to day operations of government. Government continues in a caretaker mode with no new policy initiatives undertaken until a new government is formed.

However the American system seems designed for deadlock with no confidence mechanism to break deadlocks by electing a new government. They have an executive with a Cabinet appointed and led by a President that is not responsible to the legislature and a bicameral legislative process, requiring the two legislative bodies and the President to agree for legislation, including government funding bills, to become law.

Currently the two legislative bodies are controlled by two opposing parties and the President who, while nominally the leader of one of the two main parties, is in reality a rogue actor with no political allegiance except to himself and no discernible political philosophy except for his own incoherent version of populism. This is a recipe for the chaos that is the current American political situation.

I can only suppose that when the founding fathers drafted the American Constitution they put a great deal of faith in the good will of the political participants to put the good of the American people ahead of petty politics.

Now let us look at the American electoral system.

We will start with Election Day when most (but not all as there are variations between states) Americans vote for federal, state and local officials. They could not design a better way to overwhelm voters leading them to take the path of least resistance and vote a “straight party ticket”. Just the mechanics of voting for that many officials (including many positions that should be public servants), without even considering the time and effort to consider local, state and federal issues and make meaningful voting decisions, must be completely overwhelming to voters.

Americans also elect prosecutors and judges. This raises the whole other issue of the politicization of the justice and judicial systems all the way up to a very politicized Supreme Court. This could be the subject of a treatise all by itself.

Looking at elections for federal office we have the absurd situation where the states set the rules and procedures for federal elections and these vary from state to state. So a federal election is not a consistent process with consistent rules for all Americans.

But the most egregious fact is that it is state politicians from the state's governing party that control the federal election process in that state, including the drawing of the electoral map with that infamous American institution of gerrymandering (to manipulate the boundaries of an electoral constituency so as to favour one party). This also includes the use of various voter suppression methods to reduce voting, usually of black and other minority voters.

Then we have the electoral college system which routinely elects Presidents that are not the choice of the majority of American voters. The system is somewhat designed to do that by giving smaller states relatively more electoral college votes but is made worse by the fact that in most states all of a state's electoral college votes go to the candidate with the most votes in that state. So if a presidential candidate gets 60% of a states votes he gets 100% of the states electoral college votes further skewing the results away from the popular vote.

Another concern is the primary system used to select the individual parties candidates, including the presidential candidates. Again we have an inconsistent system of primaries and caucuses that are different for each state. But perhaps the biggest problem is the timing of these primaries at different dates for each state. It makes for great drama and entertainment but the results of earlier primaries cannot help but affect the results of later primaries. There is a reason election results are not released before all the polls are closed – so that earlier voters do not influence later voters. The primary system seems designed to do just that.

A consistent federal election process overseen by an independent non-partisan agency (similar to Elections Canada) would go a long way to solving the structural problems with the American electoral system. The cultural problems of political corruption are another matter.

And we have not even looked at the role money plays in American elections which is a huge subject all by itself, especially the role of wealthy donors, PACs (Political Action Committees) and SuperPACs. No one in American government can possibly govern without constantly thinking about where the money is coming from for their next campaign. It is very hard to argue that that will not affect their decision making.

And it is almost impossible to do anything in the form of political financing reform as the Supreme Court has ruled that money equals free speech, effectively ruling that the wealthy have a greater right to free speech than ordinary citizens and a greater ability to promote their preferred candidates for election.

So with all of these fundamental problems how can American elections be fair. If American elections are not fair, they are not democratic, and if the electoral process is not democratic then the whole governing structure is not democratic.

American democracy is fucked.

Beliefs That Will Destroy The World

Christmas – Whose Holiday is it Anyway

It is time for the annual discussions about the “War on Christmas” and putting “Christ Back in Christmas”, but whose holiday is it anyway.

The Christians claim it as theirs because, well, it has “Christ” in the name and celebrates the birth of Jesus Christ. But yet they chose the timing to coincide with existing Pagan celebrations of the Winter Solstice, basically because they did not have a clue as to when Christ was actually born.

The Christians only have one high holy day during the season, Christmas. However, the capitalists have several, seemingly celebrated, at least in North America, by many more people (or should we call them consumers as the capitalists consider them) than Christmas. They have Black Friday, Cyber Monday, and Boxing Day, not to Mention Black Friday Week and Boxing Week. And then there are the December 25^th celebrations of the Patron Saint of Consumers, Santa Claus.

In Canada, the Christmas holiday season, to many. is more a celebration in line with the original Winter Solstice celebrations, a celebration of winter and snow and ice and winter activities.

Of course there are other than just Christian religious celebrations at this time, including the secular Festivus celebrations for fans of a certain television show.

In reality these winter holiday celebrations belong to all of us to celebrate however we choose and to call whatever we want.

On the Justice System, Presumption of Innocence & the Me Too Movement

Me Too Movement

The Me Too movement (or #MeToo movement), with many local and international alternatives, is a movement against sexual harassment and sexual assault.[1][2][3] #MeToo spread virally in October 2017 as a hashtag used on social media in an attempt to demonstrate the widespread prevalence of sexual assault and harassment, especially in the workplace.[4][5][6] It followed soon after the sexual misconduct allegations against Harvey Weinstein.[7][8] Tarana Burke, an American social activist and community organizer, began using the phrase "Me Too" as early as 2006, and the phrase was later popularized by American actress Alyssa Milano, on Twitter in 2017. Milano and Michael Baker encouraged victims of sexual harassment to tweet about it and "give people a sense of the magnitude of the problem".[9][10] This was met with success that included but was not limited to high-profile posts from several American celebrities, including Gwyneth Paltrow,[11] Ashley Judd,[12] Jennifer Lawrence,[13] and Uma Thurman.[14]

Source: Me Too movement - Wikipedia

MeToo on Twitter

Believe Women

"Believe women" is an American political slogan arising out of the Me Too movement.[1] It refers to the perceived necessity of accepting women's allegations of sexual harassment or sexual assault at face value. Sady Doyle, writing for Elle, argues that the phrase means "don’t assume women as a gender are especially deceptive or vindictive, and recognize that false allegations are less common than real ones."[1]

The slogan has been criticised for encouraging a presumption of guilt. Michelle Malkin, writing for The Daily Signal, suggests that it is a form of virtue signalling.[3]

Source: Believe women - Wikipedia

BelieveWomen on Twitter

While much of this movement has focused on the entertainment industry it is for all women and particularly those exploited by men in positions of authority over them. While it goes beyond criminal activity and extends to inappropriate and socially unacceptable behaviour much of it is focused on how the justice women treats women who are victims of sexual assault and exploitation.

The Big Five Principles of Our Justice System

So we will start by looking at what I see as the big five principles of our Justice System.

 

Blackstone's Ratio

In criminal law, Blackstone's ratio (also known as the Blackstone ratio or Blackstone's formulation) is the idea that:

It is better that ten guilty persons escape than that one innocent suffer.[1]

As expressed by the English jurist William Blackstone in his seminal work, Commentaries on the Laws of England, published in the 1760s.

Other commentators have echoed the principle; Benjamin Franklin stated it as, "it is better 100 guilty Persons should escape than that one innocent Person should suffer".[4]

Source: Blackstone's ratio - Wikipedia

Presumption of Innocence

The presumption of innocence is the principle that one is considered innocent unless proven guilty. It was traditionally expressed by the Latin maxim ei incumbit probatio qui dicit, non qui negat (“the burden of proof is on the one who declares, not on one who denies”).

In many states, presumption of innocence is a legal right of the accused in a criminal trial, and it is an international human right under the UN's Universal Declaration of Human Rights, Article 11. Under the presumption of innocence, the legal burden of proof is thus on the prosecution.

Source: Presumption of innocence - Wikipedia

The principle, now protected by section 11(d) of the Charter, that everyone accused of a crime is presumed to be innocent until the Crown has proven the accused’s guilt beyond a reasonable doubt to the satisfaction of a judge or jury.

Source: Presumption of innocence - Irwin Law

Beyond Reasonable Doubt

Reasonable doubt is a term used in jurisdiction of common law countries. Evidence that is beyond reasonable doubt is the standard of evidence required to validate a criminal conviction in most adversarial legal systems.[1]

Generally, prosecutors bear the burden of proof and are required to prove their version of events to this standard. This means that the proposition being presented by the prosecution must be proven to the extent that there could be no "reasonable doubt" in the mind of a "reasonable person" that the defendant is guilty. There can still be a doubt, but only to the extent that it would not affect a reasonable person's belief regarding whether or not the defendant is guilty.

Source: Reasonable doubt - Wikipedia

The evidence here must be so complete and convincing that any reasonable doubts as to the guilt of the accused are erased from the minds of the judge or jury.

The evidence here must be so complete and convincing that any reasonable doubts as to the guilt of the accused are erased from the minds of the judge or jury. This is the rigorous standard of proof that the Crown prosecutor is required to meet for each element of the offence in a criminal case.

Source: Beyond a reasonable doubt - Irwin Law

Jury Trials

A jury trial, or trial by jury, is a lawful proceeding in which a jury makes a decision or findings of fact. It is distinguished from a bench trial in which a judge or panel of judges makes all decisions.

Jury trials are used in a significant share of serious criminal cases in almost all common law lawful systems (Singapore, for example, is an exception), and juries or lay judges have been incorporated into the legal systems of many civil law countries for criminal cases.

Source: Jury trial - Wikipedia

Adversarial Justice System

The adversarial system or adversary system is a legal system used in the common law countries where two advocates represent their parties' case or position before an impartial person or group of people, usually a jury or judge, who attempt to determine the truth and pass judgment accordingly.[1][2][3] It is in contrast to the inquisitorial system used in some civil law systems (i.e. those deriving from Roman law or the Napoleonic code) where a judge investigates the case.

The adversarial system is the two-sided structure under which criminal trial courts operate that puts the prosecution against the defense.

Source: Adversarial system - Wikipedia

The Question of Consent and Credibility

The Law of Consent in Sexual Assault

Canada has a broad definition of sexual assault. It includes all unwanted sexual activity, such as unwanted sexual grabbing, kissing, and fondling as well as rape.

Sexual activity is only legal when both parties consent. Consent is defined in Canada’s Criminal Code in s. 273.1(1), as the voluntary agreement to engage in the sexual activity in question. The law focuses on what the person was actually thinking and feeling at the time of the sexual activity. Sexual touching is only lawful if the person affirmatively communicated their consent, whether through words or conduct. Silence or passivity does not equal consent.

Source: The Law of Consent in Sexual Assault - LEAF

Further information:

Brochure: Respect Sexual Consent - Royal Canadian Mounted Police

No Means No: Understanding Consent to Sexual Activity (Public Legal Education and Information Service of New Brunswick)

Let us start by rephrasing Benjamin Franklin's version of the Blackstone ratio with a more specific reference.

"it is better 100 rapists should escape than that one innocent man should suffer"

It does not sound quite so enlightened when made more specific. But that is close to reality due to the difficulty obtaining convictions in sexual assault cases. These are cases where there are often no witnesses except the victim and the accused and while there might be forensic evidence this can only prove whether a sexual act took place but not the key factor in guilt which is whether or not there is consent. So we are left with a “he said she said” scenario.

And in the “he said she said” scenario the truth become a matter of credibility and in our society one's credibility has been tied to one's social status – the ”he's a respected member of the community, he couldn't be lying” factor. Not to mention the reluctance to even report assaults committed by people in positions of power over others because of potential repercussions and the fact one won't be believed anyway. With the Me Too Movement we have seen that particularly in the entertainment industry.

But it is even more insidious (and evil) in regards to the exploitation and sexual assault of children. We have seen numerous cases of what can only be called sex assault rings comprised of so-called respectable members of the community targeting vulnerable at risk children with perceived low credibility simply because these “respected” people knew they could get away with it. And they did for too many years just because of the credibility attached to their social status.

The social standing and supposed moral credibility of religious leaders left them immune from suspicion for years and even when their institutions (one in particular) were made aware of numerous instances of assaults they was swept under the rug because protecting the reputation of the institution was more important than justice or protection for the victims.

So how do we deal with assessing credibility in sexual assault cases where it is a case of believing the victim or the accused.

Should we abandon the concept of proof beyond a reasonable doubt and adopt the preponderance of evidence/balance of probabilities concept used in civil cases.

Preponderance of the evidence

Preponderance of the evidence, also known as balance of probabilities, is the standard required in most civil cases and in family court determinations solely involving money, such as child support under the Child Support Standards Act. It is also the burden of proof of which the defendant must prove affirmative defenses or mitigating circumstances in civil or criminal court. In civil court, aggravating circumstances also only have to be proven by a preponderance of the evidence, as opposed to beyond reasonable doubt (as they do in criminal court).

The standard is met if the proposition is more likely to be true than not true. The standard is satisfied if there is greater than fifty percent chance that the proposition is true. Lord Denning, in Miller v. Minister of Pensions,[12] described it simply as "more probable than not." Until 1970, this was also the standard used in juvenile court in the United States.[13]

Source: Burden of proof - Preponderance of the evidence (law) - Wikipedia

Balance of Probabilities

A standard of proof satisfying a judge or jury that the facts at issue probably occurred as alleged. Sometimes referred to as a preponderance of the evidence or a 51 percent likelihood of occurrence.

Source: Balance of probabilities - Irwin Law

I would suggest we do not want to abandon the principle of proving guilt beyond a reasonable doubt and create a potential new problem of increased unwarranted convictions.

Rather I would suggest instead that judges instructions to juries make it clear that the standard for believing accusers and witnesses is not certainty, which is impossible to have, but rather reasonable belief in the credibility of the witness. In the words of the Me Too Movement judges must give jurors the right to Believe The Women if they reasonably believe them to be credible. The ultimate safeguard being that all 12 jurors must concur for a conviction to occur.

Broader Problems with the Justice System

There are are broader problems with our Justice System than how it deals with sexual offences.

The fist thing we should note is that we did not choose our Justice System. There was no process of examination of options or analysis undertaken . We simply inherited it, like our system of constitutional monarchy and parliamentary government, from the British. That is not necessarily a bad thing.

But our adversarial Justice System does have its problems.

It has been described as a matter of story telling with whoever tells the best story being the winner. In modern day story telling, which is done most often through TV and movies, the best story telling often involves who employs the best actors and the most effective special effects. In the case of the Justice System we are talking about the most expensive lawyers, investigators, and expert witnesses. No matter what the facts are the quality of the legal defence can be the biggest factor in a court's decision.

As well, all the facts are not necessarily available to the court for various legal reasons. If the state uses illegal means to gather evidence it is not available to the court. This is done to ensure the game is played fairly. This is, of course, a difficult matter and peoples' legal and constitutional rights are hardly “technicalities”. But would it not be better to punish those involved in illegal activity separately rather than having courts make decisions without all the facts.

Money can be the biggest factor in the outcome of a case. If you are poor, depending on legal aid or public defenders, you are at a disadvantage against the resources of the state. On the other hand if you are extremely wealthy your legal resources are much greater than those of the state.

There are other options than the adversarial system.

Inquisitorial system

An inquisitorial system is a legal system where the court or a part of the court is actively involved in investigating the facts of the case, as opposed to an adversarial system where the role of the court is primarily that of an impartial referee between the prosecution and the defense. Inquisitorial systems are used primarily in countries with civil legal systems as opposed to common law systems. Countries using common law, including the United States, may use an inquisitorial system for summary hearings in the case of misdemeanors such as minor traffic violations. The distinction between an adversarial and inquisitorial system is theoretically unrelated to the distinction between a civil legal and common law system. Some legal scholars consider inquisitorial misleading, and prefer the word nonadversarial.[1] The function is often vested in the office of the public procurator, as in China, Japan, Germany, and Scotland.

Source: Inquisitorial system - Wikipedia

The main criticism of such system is that you have one institution, the court, acting as prosecutor, defence, judge and jury. It is a system that would require a huge degree of confidence in the impartiality of the state for it to have credibility with the public.

My own sense is that we would be better off reforming our current system and I would start by looking at sentencing.

Sentencing

The first thing we need to look at are minimum sentences. Zero tolerance and minimum sentences are both concepts based on the idea that circumstances do not matter and no one can be trusted to exercise discretion.

Background on Minimum Sentences

Cleaning up the mandatory minimums mess (Policy Options)

Mandatory-minimum sentencing rules unravelling into patchwork (The Globe and Mail)

Federal government urged to rein in mandatory minimum sentences (The Toronto Star)

Sentencing Based on Accountability, Restitution and Rehabilitation

When it comes to sentencing, one thing the adversarial nature of our Justice System does is create an inclination for sentencing based on punishment and revenge rather than accountability, restitution and rehabilitation.

But there is a sentencing model that does just that, Restorative Justice, using processes such as Sentencing Circles to bring offenders, victims and communities together.

Restorative Justice

Restorative justice is an approach to justice in which the response to a crime is to organize a mediation between the victim and the offender, and sometimes with representatives of a wider community as well. The goal is to negotiate for a resolution to the satisfaction of all participants. This may include a restitution to be given from the offender to the victim, or to take steps to prevent the offender from causing future harm.

A restorative justice program aims to get offenders to take responsibility for their actions, to understand the harm they have caused, to give them an opportunity to redeem themselves and to discourage them from causing further harm. For victims, its goal is to give them an active role in the process.[1] Restorative justice is founded on an alternative theory to the traditional methods of justice, which often focus on retribution. However, restorative justice programs can complement traditional methods.

Academic assessment of restorative justice is positive. Most studies suggest it makes offenders less likely to reoffend. A 2007 study also found that it had the highest rate of victim satisfaction and offender accountability of any method of justice.[2] Its use has seen worldwide growth since the 1990s.[3] Restorative justice inspired and is part of the wider study of restorative practices.

Source: Restorative justice - Wikipedia

Restorative justice

An approach to justice issues that focuses on reconciliation and repair of harm as opposed to conventional retributive approaches. In R. v. Gladue, [1999] 1 S.C.R. 688, Cory and Iacobucci JJ. wrote: “In general terms, restorative justice may be described as an approach to remedying crime in which it is understood that all things are interrelated and that crime disrupts the harmony which existed prior to its occurrence, or at least which it is felt should exist. The appropriateness of a particular sanction is largely determined by the needs of the victims, and the community, as well as the offender. The focus is on the human beings closely affected by the crime” (at 726).

Source: Restorative justice - Irwin Law

Sentencing circles

Sentencing circles (sometimes called peacemaking circles) use traditional circle ritual and structure to involve all interested parties. Sentencing circles typically employ a procedure that includes: (1) application by the offender; (2) a healing circle for the victim; (3) a healing circle for the offender; (4) a sentencing circle; and (5) follow-up circles to monitor progress.

Restorative justice - Sentencing circles - Wikipedia

Circle sentencing

A method of sentencing sometimes used with Aboriginal offenders (and occasionally with other offenders). Typically, the judge, lawyers, police, offender and parents, victim, and other community members and professionals sit in a circle. Everyone has an opportunity to express their feelings about the offence and offender, and their views about an appropriate sentence. If a consensus emerges about an appropriate sentence, the judge will usually impose this sentence, though the judge is not obliged to do so. A body of jurisprudence deals with the appropriateness of circle sentencing for adults, and section 41 of the YCJA recognizes the judicially convened “conference,” which includes the possibility of circle sentencing.

Source: Circle sentencing - Irwin Law

Postscript

Outside of the Justice System we can believe as we choose, no “beyond a reasonable doubt” is required for individuals to use their own judgment as to their own beliefs about individuals' guilt.

As well, individuals, employers, organizations, etc. are completely entitled to hold people to higher standards than whether they committed a crime or not. In fact they should. Criminal responsibility is a pretty low standard, especially for people in positions of public trust or control over others lives, whether it be in the workplace or elsewhere.