Criminal Law

Presumption of innocence only thing between justice and lynch mob

By Peter Small, AdvocateDaily.com Contributor

The presumption of innocence for people accused of sex assault is threatened by a growing tendency to automatically believe complainants, says Toronto criminal lawyer Laurelly Dale.

The #MeToo movement and the fallout from a high-profile Toronto sex assault acquittal are undermining long established fair trial rights, says Dale, principal of Dale Law Professional Corporation.

“People are just jumping to these conclusions and assuming that people are guilty,” says Dale, whose practice is 60 per cent sex assault cases.

Dale has been twice invited to testify before Parliament on the issue.

“It is of utmost importance that we cherish and preserve and uphold that presumption of innocence,” she tells AdvocateDaily.com. “There’s a reason why we have a judicial process and why people are presumed innocent and why we have these rules to protect the accused.”

The presumption of innocence is an integral part of the justice system in the world’s democracies and is enshrined in Canada’s Constitution, she says.

Dale points to the words of 18th-century English jurist Sir William Blackstone, who said, “It is better that 10 guilty persons escape than that one innocent suffer.”

Without the presumption of innocence as a cornerstone of a fair trial, the potential for corruption and wrongful convictions skyrockets, she says. But fair trial rights are being weakened for sex assault accused on several fronts, Dale says.

Some media outlets, for example, now use the word “victim” rather than “complainant” to describe people who make as-yet unproven sex assault allegations, she says.

Dale says she has also noticed police and Crown counsel are more apt to lay charges and prosecute sex assault cases than in the past. “I think the threshold for what will be proceeded with is a lot lower,” she says.

Moreover, the federal government is posing an imminent threat to the rights of the accused by tabling Bill C-51, which is about to pass into law, she says.

The bill amends the Criminal Code to declare that certain records, like texts or e-mails, in the possession of the accused are presumptively inadmissible and that if the defence wants to make use of them must apply to have a hearing on the issue in which the complainant can participate.

Dale voiced her opposition to the amendments to the House of Commons Standing Committee on Justice and Human Rights in the fall of 2017.

It violates the accused’s presumption of innocence by requiring the defence to disclose, ahead of trial, information to the Crown and complainant that might contradict their case, she says.

“It invites the complainant to come up with a fabricated answer. It allows them to correct their mistakes at the expense of trial fairness,” she says.

Dale believes little legal consultation went into the bill before it was introduced by Justice Minister Jody Wilson-Raybould, partly because fewer lawyers are serving as MPs than in the past.

She calls it the “Ghomeshi amendment” because she says she believes it came about largely in reaction to the 2016 high-profile trial of former CBC host Jian Ghomeshi, whose defence made effective use of such evidence in cross-examining the complainants.

Ghomeshi’s acquittal sparked criticism and heated public debate, the Globe and Mail reports.

“The biggest threat to the presumption of innocence is the hashtag that came out of the Ghomeshi trial, which was ‘#believethevictim,’” says Dale.

The hashtag was criticized by Ontario Superior Court Justice Anne Molloy in her 2017 acquittal of three police officers in the alleged sex assault of a female parking enforcement officer, Dale points out.

Molloy wrote: Although the slogan ‘Believe the victim’ has become popularized of late, it has no place in a criminal trial” as it imposes “a presumption of guilt on the person accused of sexual assault.”

Dale says it’s important to remind the public of the presumption of innocence in sex assault cases.

“These types of cases are unlike any other type of criminal accusation because most of the time the Crown’s evidence comes down to the word of the complainant,” she says.

Because there is often little corroborating evidence, the credibility and reliability of the complainant’s evidence is the central question that must be tested through cross-examination, she says.

But changes like Bill C-51 erode the presumption of innocence by limiting the defendant’s scope in that regard, she says.

Ultimately, Dale says she believes the amendment will be struck down as unconstitutional. It violates, not only Charter guarantees to the presumption of innocence, but provisions securing equality, security of the person and a trial in a reasonable time, she says.

Meanwhile, Dale has been invited to testify for a second time before Parliament on Bill C-75 Sept. 24, in the House of Commons.

"I will be submitting my opposition to the specific amendment in Bill C-75 that would eliminate preliminary hearings," she says. "These are of particular importance in sex assault trials.

"The previous two preliminary hearings I’ve had in sex assault matters have resolved the files entirely (one through a guilty plea to a reduced offence; another through a withdraw of all the charges), eliminating the need for a long drawn out trial," she notes.

What’s lost on many members of the public is how easily one of them or a loved one could be charged with sex assault and have their lives turned upside down in an instant, she says.

Without due process, justice is reduced to a de facto lynch mob, she says.

“The cornerstone of our justice system rests upon the presumption of innocence and the right to a fair trial.”

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