The recent Jian Ghomeshi trial received extensive news coverage and sparked media attention on the ‘appropriate’ behaviour for defence attorneys in sexual assault cases. In this 2016 judge-alone trial, Mr. Ghomeshi, a former and well-known host of the CBC Radio show “Q” faced four charges of sexual assault and one charge of overcoming resistance by choking. On March 24th, it was announced that Mr. Ghomeshi was acquitted on all charges argued in the 8-day February trial.
A February 3rd Globe and Mail article reported that this high-profile trial has renewed a debate on how to achieve justice for both those who are accused of sexual assault and the complainant in an alleged sexual assault. This is a particular challenge since defence lawyers have foremost a duty to their clients and clearly cannot allow their compassion for a complainant to undermine their ability to prove their client’s innocence.
David Tanovich, a University of Windsor law professor, is a critic of legal tactics that could traumatize accusers in a sexual assault cases. Mr. Tanovich claims that despite the apparent ban on introducing the accuser’s sexual history as evidence, some defence lawyers continue to do so. Elaine Craig, a Dalhousie assistant law professor also criticized the unrealistically high rate of consistency in the testimony of complainants that is expected by defence lawyers and judges, when an inability to remember minor details is a normal experience particularly for someone who may have experienced a stressful event.
A University of Manitoba law professor, Karen Busby, says that one problem is the “…continuing reluctance of some judges to resist the law reform efforts made in the 90s.” (as per Huffington Post article, Jan 31, 2016). Included in these reforms is a change in the definition of consent to be “contemporaneous and continuous” for sexual assault cases. The used of past sexual history and personal records for these cases has also changed.
Sexual-assault cases are admittedly one of the most difficult types of cases to navigate in terms of sensitive issues. However, most defence lawyers agree that defence counsel has an obligation to aggressively defend their clients regardless of the allegations. The presumption of innocence until proven guilty is a fundamental right for Canadians under the Canadian Charter of Rights and Freedoms.
The vice-president of the Criminal Lawyers’ Association, Breese Davies spoke recently on this topic, both on CBC Radio and in a Toronto Star article. Ms. Davies stated that it is a myth that defense lawyers commonly use bullying and abuse as a strategy during cross-examinations. She further argued that a judge will typically intervene if a lawyer attempts to explore topics during cross-examination that are prohibited, such as sexual history.
Ms. Davies also commented that bruised feelings and distress are often unavoidable for complainants who are cross-examined because sexual-assault allegations demand probing of uncomfortable and intimate details about someone’s sex life in an open forum. Even when questions are asked in a compassionate way, they are inevitably going to be offensive. Sexual assault cases are usually won or lost on the credibility of the accused and accuser, and complainants commonly need to testify. The crux of the matter, in the words of Ms. Davies, is that defence attorneys “don’t give a free pass to any witness and just because it’s about sex doesn’t mean we change the ground rules”.
Mr. Ghomeshi was being charged for offences that go back as far as 2002. As time goes on, the memories of complainants usually diminishes and it becomes more difficult to obtain collaborating evidence, such as DNA, torn clothing, witness accounts and evidence of injuries. For these reasons, the passage of time increases the likelihood that a case will rest on the testimony of the complainant and accused and whether or not there was consent.
Karen Bellehumeur is a former Crown prosecutor who often handled sexual assault cases. In historic cases such as Ghomeshi’s where it’s a case of one person’s word against the other, the burden of proof is higher. “Unless there's a real disparity between the believability of the complainant over the accused then it's going to be very difficult for the Crown to prove a case beyond a reasonable doubt." (per Huffington Post article, Jan 31, 2016).
A sexual assault accusation is a serious charge, and conviction can result in substantial jail time in addition to many other negative affects for a defendant. The criminal lawyers at the Law Firm of Ted Yoannou have successfully defended many clients facing a sexual assault charge. Although a defendant cannot be compelled to testify, many of these cases rested on the testimony of the complainant and the defendant. Therefore, a key aspect of a sexual assault investigation is to thoroughly examine the complainant's testimony (as well as evidence such as social media posts) for inconsistencies and inaccuracies.
A sexual assault conviction requires proof beyond reasonable doubt which means that any evidence that raises doubt as to the innocence of the accused person, such as holes in the complainant's testimony, a possible grudge or motive for making a false sexual assault allegation, the defendant's alibi, a failure to prove lack of consent, and social media posts that are inconsistent with testimony, are possible grounds for having the charge dismissed.