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The complexities around the Harvey Weinstein scandal

With investigations into sexual assault allegations against Harvey Weinstein happening in several jurisdictions with multiple complainants in the United States and England, the legal troubles of the Hollywood producer are shining a light on how such cases are handled in Canada and around the world, says Toronto criminal lawyer John Rosen

“This is a high-profile individual who is being investigated for multiple offences involving multiple complainants in multiple jurisdictions,” he tells AdvocateDaily.com. “All of those factors add to the complexity of the case.”

And that demands a certain type of legal presentation, adds Rosen, founder of Rosen & Company Barristers.

In such cases, a legal team would likely advise the person at the centre of the allegations to stay out of the media spotlight to ensure that nothing he says or does is misinterpreted during any future legal proceedings, he says.

Counsel handling such a case would also gather as much information as they can about the time, place and circumstances around the allegations, as well as all information about the complainants, Rosen says. 

“They will be asking such questions as, Who are they? Why did they come forward? Why didn’t they come forward before? What’s the history? Was there a civil suit and was it settled? Was there a history of interaction that needs to be pieced together?

“From a defence perspective, you have to ask all of those questions. As a defence counsel, you can’t just sit back and accept the truth of the allegations without doing your own investigation.”

Rosen says lawyers would be essentially trying to reconstruct a person’s history for at least the period of time covered by the allegations.

“Where were they on a particular day? Who were they with and what were they doing? Was there an opportunity to have such alleged liaisons? Who else may have been present or nearby to witness the before and after?”

Rosen notes that sexual assault cases are difficult because the allegations occur in circumstances of intimacy, “when the only people who know what really happened are the accused and the complainant.”

“Often, it becomes a credibility contest, pitting one’s credibility against the other’s.”

Rosen says these cases can also be challenging if there is a commonality to the accused’s alleged conduct and a judge says that a pattern has been shown. Such a pattern may be used as circumstantial evidence to help confirm that each of the allegations happened.

Rosen points to the growing debate happening in Canada regarding the impact of the federal government’s proposed changes to the Criminal Code through Bill C-51 that will significantly affect how sexual assault trials are conducted. 

While victims' advocates say the changes are an effort to make trials fairer for both complainants and the accused, many defence lawyers assert that the new amendments put unconstitutional limitations on the right of the accused to present a fair defence.

Rosen says the basic fact that the accused is innocent until proven guilty is key, and shouldn’t be lost in the debate.

“The burden rests on the prosecution, which must call witnesses whose credibility is the focus of most sexual assault cases," he says.

"If the complainant has lied or has withheld significant information from the police, requiring the defence to disclose its evidence to the prosecution and the complainant before the trial begins invites further lies and misleading statements by the prosecution’s star witness and upsets the basic fairness of the trial.”

Rosen says the amendments are a direct response to pressure brought by lobbying groups following the acquittal of Jian Ghomeshi of sexual assault charges in 2016.

“There is a public perception out there that rich and powerful men have been getting away with these types of offences for far too long and that they ought to be held accountable,” he says. “While I can’t speak to whether that perception reflects reality, I can say that before anyone is held accountable, there must first be a fair trial. 

“You can’t have a fair trial with what is currently being undertaken in the Canadian Parliament with Bill C-51.”

Rosen says criminal law is a law of general application that is applied in specific cases. 

“We don’t use specific cases to create laws that make the system unfair for everybody. That’s the difference between a justice system and a witch hunt,” he says. 

“The rule of law requires allegations of crime to be proven beyond a reasonable doubt by real and credible evidence given under oath and vigorously tested by cross-examination in a fair and public hearing before sanctions are imposed. That proposition is at the heart of our democracy, and upsetting the balance in sexual assault trials risks the conviction of the innocent.”


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