A BURDEN UPON THE PROOF OF GUILT
BILL C-51 PLACATES RADICAL FEMINISTS, BUT STANDS TO RUIN LIVES OF INNOCENT MEN
Depending on one’s view of the criminal justice system — classic vs. postmodern — there were two general takeaways from the Jian Ghomeshi trials. Colour me classic. Based on his known character, I fully expected the charges against Ghomeshi to result in at least one conviction. But the startling inconsistencies between the complainants’ allegations and the trail of electronic communications brought into evidence by the defence convinced me that his acquittal was justified. I ended with no sympathy for the complainants who, in their wilful suppression of pertinent facts, had demonstrated a shocking disregard for the primacy of truth- telling in the courtroom.
Postmodernists, who respect “truth- telling” according to its alignment with desirable socialjustice outcomes, were offended by the outcome. They were less concerned about Ghomeshi’s rights as an accused individual than they were in seeing him take the fall, which would have affirmed their view that female victims of sexual assault should be believed. They shrugged off the complainants’ duplicity as a mere detail in a larger campaign. They would have complacently seen Ghomeshi found guilty — never mind the Criminal Code and “reasonable doubt” — for the social crime of being a sexist sleazebag.
The government apparently feels these ideologues’ pain. They have channelled the mistaken but widespread belief that the justice system is skewed against women into Bill C- 51, which has finished second reading in Parliament and will now receive attention from the Standing Committee on Justice and Human Rights. C- 51 proposes changes that will satisfy many radical feminists, but may ruin the lives of many innocent men accused of sexual assault.
C- 51 expands the “rape shield” protections for sexual assault complainants, by restricting the ability of the accused to use communications by a complainant or witness that are “of a sexual nature” or “for a sexual purpose” as part of his defence, particularly to establish the defence of “mistaken belief in consent” (remember Lucy DeCoutere’s email to Ghomeshi following an allegedly harrowing assault, “I love your hands!”?). An accused will be prohibited from introducing these kinds of sexually explicit texts or emails as evidence in court unless a judge first rules them to be admissible, after conducting a closed hearing with the Crown prosecutor, which the complainant may attend, accompanied by her own lawyer if she chooses ( giving the phrase “lawyered up” new depth of meaning).
This is a scandalous reversal of the traditional understanding that the burden of proof of guilt lies upon the Crown. Toronto defence lawyer Joseph Neuberger told columnist Christie Blatchford that the bill’s effect will be a “catastrophic attack on our ability to make full answer and defence. It’s unprecedented.”
If this bill passes, defence lawyers will be more restricted in the evidence they can lead or the case theory they can propose ( defence often taking its cue from Crown strategy). The defence’s prior disclosure may also identify complainant landmines, permitting the Crown to plot a course around them. There’s also a risk that a complainant who participates in the closed hearing ( to rule on an email or text’s admissibility) will be tipped off on what to say or not say in court. Those complainants who have no problem lying anyway may simply tailor their in- court testimonies, once they’ve been made aware of the evidence that the defence plans to lead. Anthony Moustacalis, head of the Ontario Criminal Lawyers Association, told me, “It’s using the power of the state to help prepare the Crown to prosecute the accused at the accused’s expense.”
Moreover, under C- 51, if the defence doesn’t seek to introduce such sexual- nature communications as evidence, it’s a likely signal that it has none, and the Crown can be fairly confident that the case will be little more than “he said-she said.”
This forced revelation of the defence’s cards essentially makes the defence an unwilling player for the Crown team.
Retired family-law lawyer Grant Brown believes C-51 is so misguided that it is tantamount to a repeal of the presumption of innocence, because it so weakens the defence’s ability to defend himself. He wrote to me: “Canadians have a charter right against self- incrimination, which entails that an accused is not required to speak to the police or to testify at a trial. Requiring defence disclosure comes perilously close to revoking that Charter right.”
This is an appalling bill that will make it even more difficult for accused individuals to provide a full and robust defence. If defence disclosure is such a great idea for the administration of justice, why should it only apply in cases of sexual assault? That was a rhetorical question. Only in sexual assault cases can one be nearly certain that the law will be tilted heavily in favour of finding men guilty of the offences of which they’ve been accused.