Ghomeshi Controversy a Call to the Profession

I won’t comment much on the Ghomeshi verdict, other than to note that most of its detractors don’t appear to fully appreciate the nuance of the decision.

The animus exhibited by the complainants was mirrored by observers in the court room, and the crowd that gathered outside.

There was reason to be upset. Such incidents are rightly upsetting, but these feelings should not be directed towards the bench or the justice system.

The protections within our legal system, including our Charter rights, cannot be applied selectively, or withdrawn for individuals we don’t like, or we think are likely to get away with a crime. This was not a decision about sexist stereotypes, blaming the victims, or putting complainants on trial. It was a decision about the evidence.

Justice Horkins was clear that an acquittal is not the same as a finding that he did not believe the complainants that the events in question ocurrred,

[140] 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. At the end of this trial, a reasonable doubt exists because it is impossible to determine, with any acceptable degree of certainty or comfort, what is true and what is false. The standard of proof in a criminal case requires sufficient clarity in the evidence to allow a confident acceptance of the essential facts. In these proceedings the bedrock foundation of the Crown’s case is tainted and incapable of supporting any clear determination of the truth.

What has emerged in the aftermath of the Ghomeshi trial is widespread conversations about sexual violence, as well as how our legal system works. Lawyers have a professional responsibility to be part of this conversation, but in a sensitive, compassionate, and informed manner.

We can point to a new free legal advice program in Ontario for sexual violence survivors, which helps inform individuals of options available to them. This pilot project provides up to 4 hours of free legal advice, including assistance with preparing for legal proceedings.

We can help illustrate that eroding the presumption of innocence, lowering the burden of proof in criminal trials, or allowing the state to compel the testimony of an accused, would likely have far broader and insidious effects on society, well beyond the intended offenders. And that wrongful convictions already happen in Canada, despite these protections.

We can point them to the Criminal Injuries Compensation Board (CICB) under the Compensation for the Victims of Crime Act, which one of the complainants in the Ghomeshi trial was successful in utilizing. There were approximately 3,400 CICB claims in 2013-2014, with more than 3,200 hearings. These claims provided over $28 million to survivors and the families of victims.

The sheer volume of these claims helps illustrate the magnitude of the problem. Addressing this problem is not properly done in the criminal justice system, but in our schools and our homes.

The Ontario Government’s new Action Plan on sexual violence includes the following steps:

  • develop more compassionate and sensitive responses from law enforcement authorities, to encourage more survivors to report sexual assaults
  • enhance and strengthen strengthen protections against workplace harassment under the Occupational Health and Safety Act, including a Code of Practice for better sexual harassment policies
  • an enhanced prosecution model for sexual assault cases, including training for Crown Attorneys and creation of a sexual assault advisory group

The plan seeks to remove the 2-year CICB limitation period, and amend the Limitations Act to remove limitations for civil sexual assault claims. Much of the plan is proactive, educating our youth and employers, to ensure that everyone in society has a better understanding of what behaviour is appropriate, and what is not.

We can still believe survivors, and still believe in the justice system, despite the outcome of the Ghomeshi trial.

If we convicted individuals based on public opinion, we would live in a very scary society indeed. It doesn’t mean we can’t do more to prevent these events from occurring to begin with.

Hopefully that’s something we can all agree on.

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