The Canadian Bar Association
Criminal

Rigorous testing of evidence vital in sex assault trials

Amid the onslaught of media coverage of the Jian Ghomeshi trial, there are already worrying signs that the public is being given the wrong impression of the process by which sexual crimes are tried in Canada, Toronto criminal lawyer Breese Davies writes in the Toronto Star. Globe and Mail Chatelaine

“There have been calls for a presumption that complainants are telling the truth and for lowering the standard of proof that should apply in these cases,” Davies, vice-president of the Criminal Lawyers Association, says in the article.

Calls for a justice system in which it is “easier” to secure convictions in cases of sexual assault “are dangerously antithetical to basic tenets of our justice system,” she adds.

“They threaten the fairness of criminal trials and fail to recognize that it is the person accused of a sexual offence who faces the prospect of a heavy prison sentence, inclusion on sex offender registries for years (or even life) and the associated stigma.”

Davies explains that there are several myths about the defence of sexual assault cases, the first of which is that complainants are at the mercy of a disclosure process that routinely exposes their psychiatric records, diaries and private communications to courtroom scrutiny.

“In reality, these records are not available to an accused person without a court order. Judges apply rigorous criteria when considering requests for private records of the complainant. If such an application is even brought, it is very often dismissed on the basis that the material is not sufficiently relevant to justify intruding into the complainant’s privacy.”

Another myth is that complainants are ruthlessly questioned about their past sexual conduct, she says.

“Parliament long ago passed laws to dramatically curtail this sort of probing. Except in rare cases, the complainant’s sexual history no longer has any place in Canadian courtrooms.”

The myth that defence lawyers routinely bully, abuse or attack complainants during cross-examination is perhaps the most harmful, writes Davies. There is no denying that a criminal trial can be a bruising process, she says, but this scrutiny is vital to the adversarial system.

“There is no scientific test we can apply to determine whether a complainant consented to the sexual contact in question. There are almost never any independent witnesses to the events that give rise to a sexual assault complaint. Very often, the court is left to assess and weigh the description of the events given by the only two people who were there: the complainant and the accused. Absent a rigorous testing of the evidence and a high standard of proof beyond a reasonable doubt, we run the real risk of wrongful convictions.

“The trial process, including the right to test the complainant’s evidence, is the only protection an accused person has against being wrongfully labelled and sentenced as a sex offender.”

The Ghomeshi trial, writes Davies, is a single trial that should not be used as the justification for radical change to our laws.

“In the end, Canada's sexual assault laws may not be perfect but they aren’t broken either.”

To Read More Breese Davies Posts Click Here
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