Time to reform Canada’s legal system

By: Editorial Posted: 9:05 AM CDT Friday, Mar. 25, 2016

It wasn't a surprise for most who have been watching the trial closely. Jian Ghomeshi was found not guilty of four counts of sexual assault and one count of choking on Thursday. However, the trial and the public outcry about the way it was handled suggests it is time to rethink how this country deals with sexual-assault cases.

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Hey there, time traveller!
This article was published 25/03/2016 (3516 days ago), so information in it may no longer be current.

It wasn’t a surprise for most who have been watching the trial closely. Jian Ghomeshi was found not guilty of four counts of sexual assault and one count of choking on Thursday. However, the trial and the public outcry about the way it was handled suggests it is time to rethink how this country deals with sexual-assault cases.

Over three decades ago, feminists, lawyers, academics and legislators worked hard to reform Canadian sexual assault laws in a bid to see reporting rates and conviction rates increase. Gone was the old crime of rape. Instead, three levels of sexual assault were implemented and as the laws evolved, there were increased limitations on the defence’s ability to question the victim about her sexual history. However, a victim’s credibility remains integral in the defence of those charged and certainly in the Ghomeshi case, the judge made it clear that it was the issue of credibility that led to the final verdict.

Of the 15,000 sexual-assault cases reported to police, only 1,400 will result in a conviction, according to the YWCA. That doesn’t mean that in the 13,600 cases, the victim is lying. What it does mean is the system is flawed. It’s time for another look at how the legal system can work so that half of the Canadian population can feel that the justice system will work for them. Here’s where we can start.

First, the government needs to work with provincial governments to ensure that Crown attorneys are well-trained and have the resources to successfully prosecute these types of charges. In the Ghomeshi trial, the prosecutors were woefully unprepared, which resulted in the defence undermining the victims’ assertions about the events. It seriously damaged the case and left many observers wondering how this could happen.

Second, there have been questions raised about the ethics of the $55-million civil lawsuit filed by Mr. Ghomeshi and his lawyers against the CBC in October, just prior to his being charged. Lawyer David Tanovich has opined that this lawsuit was designed to silence potential victims from coming forward as the investigation was beginning. He suggested it was both legally and professionally unethical. More should be done to curtail these types of lawsuits while an investigation is ongoing.

The Canadian Judicial Council and provincial legal societies need to do more work to make sure judges, prosecutors and defence attorneys understand their roles and limits in sexual-assault trials. There should be an education process for judges before adjudicating these cases. Examples such as Justice Robin Camp, who questioned a sexual-assault victim’s attempts to fight off her attacker in Alberta, or Manitoba Justice Robert Dewar, who called a man who sexually assaulted a woman in Thompson a “clumsy Don Juan,” not only hurt the court’s credibility, but also send a dangerous message to women who have been assaulted. Also, lawyers who actively “whack the complainant” in court proceedings should face sanctions.

And more assistance should be provided to victims as they head into court. The Crown is not expected to advocate on their behalf, so victims are often left on their own to deal with media, the trial and the aftermath. In Manitoba, when the accused makes a request for the disclosure of third-party records, a lawyer is assigned to the victim at the cost of the province. This needs to be extended to all sexual-assault trials in all provinces. Surveys repeatedly demonstrate that one of the reasons women don’t report their crime is fears about the judicial proceedings. Having an advocate who knows the judicial process to act as a support system for victims could be helpful.

New laws came into effect in 1983 that were supposed to improve justice for victims of sexual assault. It’s time to review the process again.