The reaction to Jian Ghomeshi’s acquittal last week on sexual assault charges was swift, emotional and mostly negative. It will undoubtedly be debated for years and raises the legitimate question of whether the traditional legal system is the correct way to deal with sexual assault cases.
From a strictly legal standpoint, the outcome was predictable.
Perhaps anticipating criticism, Justice William Horkins laid out the “Framework of Analysis” in detail, something rarely done in judge-alone trials.
“The primary and overarching principle in every criminal trial is the presumption of innocence,” Horkins wrote. “This is the most fundamental principle of our criminal justice system. It is essential to understand that this presumption of innocence is not a favour or charity extended to the accused in this particular case. To be presumed innocent until proven guilty by the evidence presented in a court of law is the fundamental right of every person accused of criminal conduct.”
Going hand in hand with the presumption of innocence is the standard by which guilt is assessed. In criminal cases, this is “beyond a reasonable doubt.”
On that point the judge went into considerable detail, even repeating verbatim the Supreme Court guidelines for charging a jury as outlined in R. v. Lifchus, part of which reads: “Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.”
Justice Horkins also felt compelled to note Ghomeshi’s decision not to testify in his own defence is his absolute right and that no “adverse inference arises” from that decision.
Finally, the judge acknowledged the behaviour of victims in this type of case can be “variable and unpredictable.”
Nevertheless, he found the complainants less than truthful writing:
“The harsh reality is that once a witness has been shown to be deceptive and manipulative in giving their evidence, that witness can no longer expect the Court to consider them to be a trusted source of the truth. I am forced to conclude that it is impossible for the Court to have sufficient faith in the reliability or sincerity of these complainants. Put simply, the volume of serious deficiencies in the evidence leaves the Court with a reasonable doubt.”
At the best of times, sexual assault cases are a tough grind. The vast majority of sexual assaults go unreported in the first place. Many that are reported do not go to court and when they do conviction rates are abysmal at just 45 per cent. Considering police need “reasonable grounds to believe” a crime has been committed and prosecutors must have “a reasonable prospect of conviction” to proceed, 45 per cent is really bad.
And even when convictions are achieved, victims frequently walk away retraumatized.
Many people feel rapists routinely get away with it, something that is even hinted at in the Ghomeshi decision.
“My conclusion that the evidence in this case raises a reasonable doubt is not the same as deciding in any positive way that these events never happened,” Horkins wrote.
Ultimately, we have a societal problem that does not seem to be getting addressed by just about the only avenue available to address it, the criminal courts.
Some suggestions have been put forward including separate courts, public funding of civil litigation, a restorative justice option and better education.
All of these have their own challenges, but we need to try something else for sure.
I am not saying Ghomeshi is guilty or innocent, but what we are doing now is almost certainly not working for anybody.
