Jian Ghomeshi’s acquittal on sexual assault charges proved that Canada’s criminal legal system works – although justice may be denied.
But that’s about all it proved.
On Thursday in Toronto’s Old City Hall courthouse, Ontario Court Justice William Horkins took some 75 minutes to read his judgment. Just about every one of those minutes contained an excoriation of the Crown’s case.
For the three complainants who had to endure his harsh words, those minutes had to have been torture.
Their hopes of seeing the disgraced CBC Radio star punished for, as they claimed, punching, slapping and choking them were irredeemably wrecked by the many inconsistencies between what they told the media and the police and said on the stand.
As Horkins said of Lucy DeCoutere, the only one of the complainants whose identity was made public, what transpired in his courtroom “reflects very negatively on her general reliability and credibility as a witness. It indicates a failure to take the oath seriously and a wilful` carelessness with the truth.”
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As he pointed out, “reliability and credibility” are most critical in a sexual assault trial. In the absence of third-party witnesses, cuts and bruises, and/or DNA evidence, it can only come down to “he said, she said.” (I am using he and she here because most sexual assaults involve male attackers and female victims.) The advantage therefore is to the defendant because the law always presumes him innocent. It is up to the Crown to eliminate all “reasonable doubt” before a guilty verdict can be reached.
It’s long been nearly impossible to get a conviction in a sexual assault case with the best of evidence – assuming that the case actually makes it to trial – but if a judge suggests that the purported victim has “fabricated” evidence, was “less than full, frank and forthcoming” or has “selectively withheld information,” the accused will walk.
That despite the possibility that the attacks actually occurred.
"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,” Horkins said. “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."
Every one of the nine jurists I have discussed this case with, both during and after the trial, regretfully said she would have come to the same conclusion.
Which brings us to belief.
While Horkins was inside on Thursday questioning whether he could accept what the witnesses had sworn happened, outside the courthouse dozens of demonstrators braved the freezing rain to declare that they “believed women,” that the system was stacked against them, that once again a “white male” had used his privilege to discredit and disempower women, that the laws had to change.
Meanwhile, on social media, #IBelieveSurvivors and #WeBelieveSurvivors were trending, as if it were possible, solely in sexual assault cases, to torch Section 11 of the Canadian Charter of Rights and Freedoms. It states that any person charged with an offence “has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.”
That’s any person, including, and perhaps especially, those charged with the most serious crimes.
But anybody who dared to raise that legal reality was barraged with accusations of “victim blaming” and all the other phrases connected with #rapeculture and, indeed, my own viral creation, #BeenRapedNeverReported.
It’s understandable that the survivor advocates would be angry and disappointed. But not to the point of, as some are doing, demanding the creation of special laws just for sexual assault, laws that could shred a defendant’s constitutional rights.
“This is so distressing,” says Sandy Garossino, a former B.C. Crown prosecutor who is now associate editor of the National Observer. “The hyper-defensiveness by survivor advocates of people who were deceptive with media, police, prosecutors and the court is hurting, not helping the cause.”
And so, instead of uniting in their outrage to change a system that makes it difficult for victims to come forward, to ensure that there is funding for education, police training and victims’ legal counsel, many feminists are attacking not only those who don’t fall into line but also the female members of the defence team as if they were traitors to women.
“It's like we're not allowed to hold grown women responsible for their failures, which is another way of infantilizing them,” Garossino observes. “The whole angle that they were so traumatized that they couldn't remember rings hollow. Very troubling – especially considering the damage this will do to survivors who need support.”
It took unity in the 1980s to change the Criminal Code so that “sexual assault” replaced “rape,” which required that penetration be proven. It took another fight and another 10 years to bring in rape shield laws that, while not perfect, prevent defence attorneys from putting a complainant’s sexual history on trial.
But the sad truth here is that the Ghomeshi case has perhaps set back sexual assault advocacy by decades and may well result in even fewer women stepping forward than already do.
The good news is that it has blown open the topic for discussion.
Now the burden is on governments at all levels to prove they believe women should get justice, not just legal lip service.
Antonia Zerbisias is a freelance writer and broadcaster. She co-created the viral hashtag #BeenRapedNeverReported.