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An earlier study found more sexual assault cases ended with the charges stayed or withdrawn (47 per cent) than they do with a conviction (42 per cent).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

  • U.S. hits 70 per cent vaccination rate -- a month late, amid a surge

    World News CTV News
    The U.S. on Monday finally reached President Joe Biden's goal of getting at least one COVID-19 shot into 70 per cent of American adults -- a month late and amid a fierce surge by the delta variant that is swamping hospitals and leading to new mask rules and mandatory vaccinations around the country. Source
  • China flooding deaths triple to more than 300 after officials revise toll

    World News CBC News
    More than 300 people died in recent flooding in central China, authorities said Monday, three times the previously announced toll. The Henan provincial government said 302 people died and 50 remain missing. The vast majority of the victims were in Zhengzhou, the provincial capital, where 292 died and 47 are missing. Source
  • Woman fatally mauled by bear in northern Alberta

    Canada News CTV News
    EDMONTON -- Mounties say a female tree planter has been mauled to death by a bear in northern Alberta. RCMP told CTV News they received a call just after 3 p.m. on July 31 regarding an attack in a rural area northwest of Swan Hills. Source
  • Family of Black man fatally shot by police in Repentigny, Que., blame racism for his death

    Canada News CBC News
    The family of a Repentigny, Que., man who died after police shot him three times in the stomach on Sunday are blaming anti-Black racism in the city's police force for his death and are demanding justice. Marie-Mireille Bence, the mother of the victim, called police Sunday morning asking them to bring her son, Jean René Junior Olivier, 37, to the hospital because he was having a mental health issue. Source
  • Calgary woman felt 'humiliated' by Alberta sheriffs during a traffic stop

    Canada News CTV News
    CALGARY -- KumKum Roychowdhury says she was driving home to Calgary from her nephew's home in Airdrie, Atla., when she was pulled over by Alberta sheriffs and asked to take a breathalyzer. When she struggled to provide a proper sample after 17 attempts, she said that's when officers told her to remove part of her cultural outfit and open her clothing, an idea she was "insulted" by. Source
  • Calgary woman says she felt 'humiliated' by Alberta sheriffs during a traffic stop

    Canada News CTV News
    CALGARY -- KumKum Roychowdhury says she was driving home to Calgary from her nephew's home in Airdrie, Atla., when she was pulled over by Alberta sheriffs and asked to take a breathalyzer. When she struggled to provide a proper sample after 17 attempts, she said that's when officers told her to remove part of her cultural outfit and open her clothing, an idea she was "insulted" by. Source
  • Sixties Scoop survivors call for federal inquiry and apology

    Canada News CBC News
    WARNING: This story contains distressing details. Former Canadian senator Murray Sinclair and a group representing survivors of the Sixties Scoop are calling for a federal inquiry into the actions and policies of governments that led to thousands of Indigenous children being taken from their homes over four decades and placed with non-Indigenous families. Source
  • FBI used 'provocative photos' of female office staff to catch sexual predators, watchdog says

    World News CTV News
    FBI agents posted provocative photos of female coworkers online without formal authorization as part of sting operations against sex trafficking, according to a new watchdog report. The Justice Department's inspector general said in a report released Monday that some FBI agents "sometimes used photographs of young female support staff employees to pose as minor children or sex workers to entice sexual predators on various social media websites. Source
  • German court sets trial date for former Nazi guard, aged 100

    World News CTV News
    BERLIN -- A German court has set a trial date for a 100-year-old man who is charged with 3,518 counts of accessory to murder on allegations he served as a Nazi SS guard at a concentration camp on the outskirts of Berlin during World War II. Source
  • Obama to host COVID-compliant 60th birthday party amid rising virus concerns, source says

    World News CTV News
    Former President Barack Obama will celebrate his 60th birthday this weekend with a party in Martha's Vineyard, with many COVID-19 safety protocols in place amid heightened concerns over the Delta variant, a source familiar with the planning told CNN. Source