Michael Ford (post until Oct. 31/19)

Sexual assault allegations and the presumption of innocence

By Joseph Neuberger

Any criminal allegation must be proven in a court of law beyond a reasonable doubt. All persons accused of an offence is innocent until proven guilty. That is the presumption of innocence. A sacrosanct principle that is crucial to any legitimate criminal justice system - the fundamental requirement of fairness. However, the mere statement of a complainant can and often does result in the laying of charges. In a trial, oral evidence of a complainant is sufficient to establish guilt beyond a reasonable doubt without any other evidence to support the allegation.

Unfortunately, the stigma and repercussions resulting from a conviction of sexual assault are so severe that one would imagine investigations into allegations of sexual assault would be detailed and exhaustive. That is not the case. Many investigations do not go beyond the interview of the complainant. This poses a challenge to trial courts to determine guilt or innocence. Over the years, however, courts have applied common sense and a fair and balanced assessment of witness evidence including the evidence of an accused. Sadly in recent years, there has been a concerning trend to discount evidence of an accused merely because of the desire to believe a complainant. Courts have pulled away to some degree from the appropriate application of Regina v. W.D., a case that applies a fair approach to assessing an accused's trial evidence. This is a concerning development. In addition, the newly minted requirement set down by our government to have judges educated on sexual assault and how to assess sexual assault cases can pose a serious threat to an accused getting a fair trial on an allegation of sexual assault.

With forthcoming amendments to the Criminal Code set out in Bill C-51, there will be further erosion of the ability of an accused to marshal important and relevant evidence. This combined with the propaganda being pushed into the calculus of criminal trials that complainants do not fabricate sexual assault allegations we may see an unprecedented rise in wrongful convictions. Criminal defence lawyers will need to be well equipped to counter this disturbing trend and to constitutionally challenge any legislation that seeks to foist unfair burdens on an accused person and hamper the right to a fair trial.

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