Jian Ghomeshi's trial highlights need for deep legal reform: lawyer

TORONTO -- A Toronto lawyer who's called for substantial reforms to how the legal system handles sexual assault cases says the Jian Ghomeshi trial shows that the adversarial model presently in place is "structurally ill-suited" to deal with such allegations.

See Full Article

The current system is "basically trial by war," said David Butt, who has represented many complainants in sexual assault cases.

"That is probably the worst thing to do to complainants who are coming forward to talk about very intimate and distressing violations of their sexual integrity," he said.

The high-profile Ghomeshi case has seen witnesses alter their statements under relentless cross-examination that often focused on details of memories dating back more than a decade -- a tactic deemed common among defence lawyers.

Ghomeshi has pleaded not guilty to four counts of sexual assault, which carry a maximum of 18 months in jail, and a choking charge that has a potential maximum of life in prison.

The Crown and the defence are slated to make closing submissions to Justice William Horkins on Thursday.

"Right now the stats on people coming forward are abysmal so we really need to build trust," Butt said. "Moving away from an adversarial model, I think, is going to be necessary because look at the Ghomeshi trial -- who would voluntarily put themselves through that?"

Canada's legal system has made strides in the last few decades in trying to recognize the unique nature of sexual assault cases, including the implementation of rape shield laws that bar using a woman's sexual history to discredit her.

Sexual violence is nonetheless often kept secret: a Statistics Canada survey found that only five per cent of sexual assaults were reported to police in 2014, a proportion consistent with previous studies.

An earlier study found more sexual assault cases ended with the charges stayed or withdrawn (47 per cent) than they do with a conviction (42 per cent).

"It just isn't working on the ground," said Tamar Witelson, legal director for METRAC Action on Violence.

"I don't think that just taking the criminal justice system as it's designed for any kind of criminal offence and then laying that into the nature of sexual assault -- I just don't think it works," she said. "So this idea of looking for ways of restructuring our legal response to allegations of sexual assault is really necessary and I don't mean just tinkering."

Creating a specialized court to deal with sexual assault cases, like those earmarked for young offenders or those accused with mental health issues, could help, although those tend to focus on the circumstances of the offender, Witelson said.

"What we need is to have people who are involved in the system -- and that is judges and Crown counsel and defence counsel and perhaps a role for independent counsel who is advising the complainant directly and representing her interests directly in court -- ... to have specialized knowledge about the dynamics of sexual violence and the very many ways in which people who are surviving from this kind of trauma are coping," she said.

While an alternate court would likely be an improvement, Butt said he believes the situation calls for more drastic change -- one that could involve the civil courts.

In order to convict, the criminal justice system requires proof beyond a reasonable doubt, a standard that is "almost impossible" to meet, particularly in cases when the complainant and accused have an existing relationship, Butt said.

The civil system, meanwhile, needs only for one side to be more believable that the other, which increases the likelihood that someone will be held responsible, he said.

"I think a lot of complainants ... a lot of them just want validation, they want an apology, they want recognition of wrongdoing," he said.

"Until we start offering a suite of options that will give victims a real say in how this process plays out, until we start doing that, we're not going to get them coming forward. So I say the time has come to take a hard look at the options."

The allegations against Ghomeshi prompted the Ontario government to launch an action plan against sexual violence and harassment, and both Butt and Witelson said the trial has turned a spotlight on the criminal justice system.

"The Ghomeshi (trial) is a bit of a tipping point in the sense that it's consolidating this perception that we need to do something," Butt said.

"So I'm hopeful that serious discussion about reform will follow, but we're not yet having them."



Advertisements

Latest Canada & World News

  • Trump to name prominent climate change denier as environmental chief

    World News CTV News
    WASHINGTON - President-elect Donald Trump is expected to nominate Oklahoma Attorney General Scott Pruitt to lead the Environmental Protection Agency, a source close to Pruitt said Wednesday. Pruitt, a 48-year-old Republican, has been a reliable booster of the fossil fuel industry and an outspoken critic of what he derides as the EPA's "activist agenda. Source
  • It may be 'foolish' to ignore Trump's tweets, even when they look like 'fluff'

    World News CBC News
    Here are some words sent from Donald Trump's Twitter account that, depending on who you talk to, did or didn't matter in the last two weeks. "Cancel order!" he wrote about Boeing's Air Force One development contract. Source
  • Hatchimals: this year's Christmas blockbuster toy — and a Canadian innovation

    Canada News CBC News
    Quick. Can you name the Canadian toy company that's growing faster than Mattel, Hasbro and Lego? No need to worry if you can't. But ask any child between three and nine years old and they probably can. Source
  • OPP asked to investigate 2 more deaths at nursing home where Elizabeth Wettlaufer worked

    Canada News CBC News
    Police have been asked to expand their investigation into a nurse accused of killing eight elderly patients after two more families expressed concern about the "unexpected" deaths of relatives who lived at a facility where Elizabeth Wettlaufer worked, a London, Ont. Source
  • Provinces urged to help solve unfixed safety recalls

    Canada News CBC News
    Provincial governments across Canada are missing an opportunity to improve auto safety by not checking for unfixed or open safety recalls when owners register their vehicles, experts say. While most provinces require a safety or mechanical inspection before a vehicle changes hands, none check for outstanding safety recalls or insist that they be fixed. Source
  • Joe Biden drops in for a visit without any gifts: Chris Hall

    Canada News CBC News
    He's just a few weeks away from becoming just another ordinary Joe. But that's not stopping U.S. Vice-President Joe Biden from making an official visit to Ottawa, where the Canadian government will roll out the red carpet. Source
  • $1B RCMP overtime bill proof of 'exhausted and depressed' members, retirees say

    Canada News CBC News
    The Royal Canadian Mounted Police (RCMP) has paid its members more than $1 billion of overtime since 2009, according to documents obtained by CBC News. Recent retirees from the force say the costs confirm anecdotes that many officers are stressed, overworked and depressed. Source
  • 'Iconic' woman who will be featured on Canadian bill unveiled today

    Canada News CBC News
    The name of the first Canadian woman to be featured on an upcoming banknote will be unveiled today. The denomination of the bill which will feature the as-yet unnamed woman will also be announced by Finance Minister Bill Morneau and Bank of Canada governor Stephen Poloz at a news conference in Ottawa. Source
  • Conservatives made 'political' decision to cut military flying time in 2014, Laurie Hawn says

    Canada News CBC News
    The Harper government made a "political" decision to cut flying times for CF-18s and other military aircraft so it could save money and campaign on a balanced budget in 2015, says a former Conservative MP and ex-fighter pilot. Source
  • A small way Trudeau's new LGBTQ2 advisor can make life easier for the trans community: Opinion

    Canada News CBC News
    Last month, Prime Minister Justin Trudeau announced Edmonton Centre MP Randy Boissonnault as his special advisor on lesbian, gay, bisexual, transgender, queer/questioning and two-spirited (LGBTQ2) issues. Boissonnault comes into the role with a full roster of matters waiting for attention, including a long-promised government apology for past discriminations against members of the LGBTQ2 community. Source