Verdict reverberations

It’s an Alberta echo of an Ontario verdict.

And chances are, it’s an echo that’s going to be heard a lot in Canada’s courtrooms, unless the federal government makes some drastic changes to the criminal code.

Alberta provincial judge M.T.C. Tyndale, ruling on a sexual assault case in Calgary, filed a 5,634-word verdict on Sept. 8 — except that not all of the words were his own.

That’s not unusual: judges frequently cite parts of the verdicts of other judges when they rule on cases, and those other verdicts can anchor new verdicts in the broad spectrum of case law.

Judge Tyndale was ruling on a case where there were only two witnesses to the alleged sexual assault: the complainant and the accused. That’s a common situation for sexual assault trials. Judge Tyndale had some issues with the evidence given, and questions about what to believe

But what’s interesting about Tyndale’s verdict is how many of the words were not his own. In total, the judge took essentially onefifth of his verdict, a 1,156 word block, directly from another case, because that case, from the Ontario courts, was an apt representation of the problems of sexual assault cases.

The case Tyndale took such a large block of text from was the Queen versus Nyznik, a recent Ontario Superior Court case involving three Toronto police officers acquitted of sexually assaulting a traffic enforcement officer after a night of drinking.

It’s not incorrect to say that Judge Tyndale essentially took the guts of Justice Anne Molloy’s Nyznik verdict, which was a succinct analysis what the court faces in such trials.

The nub of that verdict? “(T)he focus of a criminal trial is not the vindication of the complainant. The focus must always be on whether or not the alleged offence has been proven beyond a reasonable doubt. … Although the slogan ‘Believe the victim’ has become popularized of late, it has no place in a criminal trial. To approach a trial with the assumption that the complainant is telling the truth is the equivalent of imposing a presumption of guilt on the person accused of sexual assault and then placing a burden on him to prove his innocence. That is antithetical to the fundamental principles of justice enshrined in our constitution and the values underlying our free and democratic society.”

The problem is that Judge Molloy was right in her interpretation of the current state of the law, the function of a criminal trial, and the onus placed on judges.

Judge Tyndale echoed that position, and that echo will sound from other courts as well.

As cases like the Const. Doug Snelgrove sexual assault trial in this province have shown, it’s an uphill battle for prospective complaints.

But the presumption of innocence is, and will be, the cornerstone of our criminal justice system.