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An earlier study found more sexual assault cases ended with the charges stayed or withdrawn (47 per cent) than they do with a conviction (42 per cent).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

  • The U.S. just marked 25 million Covid-19 cases. Now it's a race between vaccines and variants

    World News CTV News
    It took just over a year for the US to go from one to 25 million coronavirus infections. That's an average of about 67,934 new infections every day. Or a new infection every 1.2 seconds since January 21, 2020. Source
  • Israel to close airport to bring outbreak under control

    World News CTV News
    JERUSALEM -- Prime Minister Benjamin Netanyahu on Sunday said Israel will be closing its international airport to nearly flights as the government races to bring a raging coronavirus outbreak under control. The entry of highly contagious variants of the coronavirus, coupled with poor enforcement of safety rules in ultra-Orthodox communities, has contributed to one of the world's highest rates of infections. Source
  • Too many new pet owners, not enough vets make getting animal care a problem

    Canada News CBC News
    Dr. Liz Ruelle says it was a difficult decision to close her veterinary practice to first-time patients after being swamped with requests by new pet owners who turned to animal companionship during the pandemic. For Ruelle, who operates the Wild Rose Cat Clinic in Calgary, everything takes two to three times longer with COVID-19 safety protocols, so providing timely medical attention to animals can be challenging. Source
  • Dutch police clash with anti-lockdown protesters in 2 cities

    World News CTV News
    URK, NETHERLANDS -- Rioters set fires in the centre of the southern Dutch city of Eindhoven and pelted police with rocks Sunday at a banned demonstration against coronavirus lockdown measures, while officers responded with tear gas and water cannons, arresting at least 30 people. Source
  • 'Deeply disturbing:' Nunavut internet still slower, more costly than rest of country

    Canada News CTV News
    IQALUIT, NUNAVUT -- In Nunavut, it's not unusual for the internet to cut out, slow down or stop working altogether. Unlike most jurisdictions in Canada, there is no option for unlimited internet. Instead, residents are faced with high prices and heavy fees for higher monthly data caps. Source
  • 'Group of idiots': Sask. premier defends Dr. Shahab after harassment at family home

    Canada News CTV News
    REGINA -- Saskatchewan’s premier had strong language for what he called “a group of idiots” who allegedly harassed the province’s chief medical health officer, and his family, at their home on Saturday. “This harassment of Dr. Source
  • Trapped for 2 weeks, 11 workers rescued from gold mine in China

    World News CBC News
    Eleven workers trapped for two weeks by an explosion inside a Chinese gold mine were brought safely to the surface on Sunday. State broadcaster CCTV showed workers being hauled up in baskets on Sunday afternoon, their eyes shielded to protect them after so many days in darkness. Source
  • Quebec reports 1,457 new COVID-19 cases, hospitalizations drop for fifth straight day

    Canada News CTV News
    MONTREAL -- Quebec reported Sunday that 1,457 more people have tested positive for COVID-19 in the past 24 hours bringing the total number of infections to 253,633 since the pandemic began. It is the first time since Jan. Source
  • 'It wasn't called COVID at the time:' One year since Canada's first COVID-19 case

    Canada News CTV News
    TORONTO -- The patient, when he came into the hospital ER with what seemed to be mild pneumonia, wasn't that sick and might otherwise have been sent home. Except the man had just returned from China, where a new viral disease was spreading like a brush fire. Source
  • Trump administration had no coronavirus vaccine distribution plan

    World News CTV News
    WASHINGTON -- There was no distribution plan for the coronavirus vaccine set up by the Trump administration as the virus raged in its last months in office, new President Joe Biden's chief of staff, Ron Klain, said on Sunday. Source