Sexual assault trials in Canada: assumptions and misinformation clarified.

Recent events surrounding Jian Ghomeshi has instigated a national outcry relating to the protection of sexual assault victims and the difficulties they face when struggling with the decision to come forward and, in turn, testifying at sexual assault trials.

This article seeks to clarify some widely held, incorrect beliefs about sexual assault trials. In better understanding the rules and realities of sexual assault trials, both accused and alleged victims should feel more empowered and comfortable in the process.

Recent discussion on the topic of sexual violence seems to place blame upon the justice system and its claimed insensitivities towards victims. In response to this controversy, former Crown prosecutor Sanda Garosinno authored “What Kind of Woman Won’t Report Sexual Assault” in the Huffington Post. There, Ms. Garosinno relays her past experience and views on these challenges that complainants may face when they decide to come forward. In turn, she theorizes that these factors contribute towards a general sense of reluctance in reporting sexual crimes. Essentially she asserts that without change, victims will be deterred from reporting crimes committed against them.

Yet this begs some questions:

Are the factors referred to by Ms. Garosinno as pervasive as she seems to suggest and are the Courts indifferent to them?

Do victims of sexual violence need greater protection in Court, or greater empowerment in the process?

Assuming the court process is contributing to the reluctance of reporting, what can be done to change that?

Can all of this be achieved while respecting the right of anyone accused of a crime to make full answer and defence if they claim innocence?

In my view, many of the factors mentioned in her Huffington article grossly overstate and oversimplify what happens in a sexual assault trial. Ironically, this may actually foster reluctance in reporting by a victim in fear that the litany of things presented by Ms. Garosinno will inevitably happen to them.

The solution lies not in generating fear, but confidence in victims that the justice system will and does adequately protect them while at the same time attempting to strike a balance with the accuseds’ rights to defend themselves against allegations they may claim as false.

As with any human system, there is always room for improvement and many have suggested ways to do just that. However, our justice system in Canada is overall quite robust in protecting victims’ rights, and it is only becoming stronger. Having a better understanding of that process assist everyone involved, including those that may be reluctant to come forward – this article sets out to achieve that.

1. Wrongful convictions cannot be ignored or sacrificed.

As good as our Canadian justice system may be, it is not perfect. Innocent people are convicted of very serious offences – and perhaps more than we will ever know or care to believe. Lawyers, judges, and juries all try to reach the right result but in the end it is a human system and prone to error. Lives are ruined as a result of faulty evidence, lying witnesses, or witnesses who exaggerate or are mistaken.

Conversely, and for similar reasons, people are found not-guilty of criminal acts they commit. Perfection is an impossible standard in a system that seeks to achieve justice and fairness. It also cannot be forgotten that justice is often a relative concept to which side of the courtroom you may be arguing from.

That said, there are some facts that we know:

It is a fact that sexual assaults take place.

It is a fact that many people do not report them.

It is a fact that some people who commit sexual assaults are acquitted.

It is a fact that these acts profoundly affect those involved – often with ruinous effects upon their lives.

However,

It is also a fact that people are wrongfully accused of sexual assaults.

It is a fact that some of those people will be convicted for something they did not do.

It is a fact that a conviction for a sexual assault (correctly reached or not) will ruin that person’s life.

All the justice system can do is strive to reach the right result through various processes and protections that attempt to justly result in the truth of the matter. All we can reasonably expect of the justice system is that it is fair and that both sides are heard impartially.

When assumptions are made either way (i.e., guilt or innocence), then the system erodes and becomes a meaningless exercise. For the same reason we don’t presume people guilty when charged, we don’t presume complainants are lying – all parties are entitled to a fair hearing and due process.

2. It has to be said: some complainants lie.

It is difficult to comprehend how an individual can commit a sexual assault and violate another so fundamentally. Rational, civilized, empathetic, and normal human beings do not act this way.

However, it is difficult to understand why someone might lie about such a thing. Yet, it happens and this cannot be reasonably disputed. Even experienced prosecutors would have to admit such a phenomenon. People lie for all sorts of reasons. Disregarding this inescapable attribute of human beings places a person accused of a heinous crime at an impossible disadvantage.

If society (wrongly) assumed that people do not lie about being sexually assaulted, imagine how easily another person could ruin a person’s life? People lie for attention, people lie for financial gain, and people lie to avoid negative consequences. For example, how many times have heard of people telling a very powerful and seeminly candid account of events, only to later be discovered by video evidence to the contrary?

To assume that people cannot lie about sexual acts is as blind as someone saying certain people do not commit sexual offences. Both are absurd statements. Therefore, the legal system must recognize this and ensure we do not jump to any conclusions before hearing all the evidence. This is precisely the role of a criminal trial.

It is easy for us to think that the false complaints are impossible because we might say: “I would never lie about something like that”. This may be true – you may not. Conversely, many would say “I would never commit a sexual assault.” Yet, both happen – some complainants lie and some people commit sexual offences. That is the unfortunate world we live in. We cannot, as a fair and just society, refuse to accept one premise over the other because it is more politically acceptable.

3. There are strict limits at to what a defence lawyer can ask a complainant during trial:

In Ms. Garosinno’s article, there is considerable attention paid to what sort of “sample” cross-examination questions are asked of complainants. Although these questions may occur in some cases, there is a context to these questions that needs to be understood.

In any criminal trial, lawyers are not permitted to ask any questions they wish. This is particularly so when the questions are irrelevant or unfairly prejudicial. Before any question is asked, there must also be a good faith basis of the lawyer that the question is relevant to the defence (or prosecution). To use a common phrase, lawyers are not permitted to go on “fishing expeditions”.

As said by the Supreme Court of Canada in R. v. Lyttle:

“A good faith basis” is a function of the information available to the cross-examiner, his or her belief in its likely accuracy, and the purpose for which it is used…The information may fall short of admissible evidence and may be incomplete or uncertain, provided the cross-examiner does not put suggestions to the witness recklessly or that he or she knows to be false. The cross-examiner may pursue any hypothesis that is honestly advanced on the strength of reasonable inference, experience or intuition and there is no requirement of an evidentiary foundation for every factual suggestion put to a witness in cross-examination. Where a question implies the existence of a disputed factual predicate that is manifestly tenuous or suspect, a trial judge may seek assurance that a good faith basis exists for the question.

These questions are curtailed further by rules of evidence relating to relevance, and ensuring that the trial is not rendered unfair (for either side) by leading evidence that is unduly prejudicial and misleading to a trier of fact. This rule is guarded even more fiercely in cases involving juries where the potential to cause prejudicial and sympathetic reasoning is greater.

a) Section 276 of the Criminal Code prohibits unrelated questions of prior sexual activity:

To emphasize a more more important point unique to sexual assault allegations, cross-examination is curtailed even further by section 276 of the Criminal Code. This section prohibits, for good reason, a number of questions that are assumed irrelevant unless shown otherwise by the person seeking to ask the questions. It reads as follows (paraphrased):

276. (1) In [sexual offences] evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant is (a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or (b) is less worthy of belief.

As said, for very good reason, defence lawyers are not permitted to ask any questions relating to prior sexual activity (even with the accused) unless some very strict criteria are met. Defence counsel, on behalf of their clients, may only ask questions about prior sexual activity if they establish them as relevant to an issue (such as consent, or the accuseds’ mistaken belief in consent). In doing so, they questions must be:

(a) is of specific instances of sexual activity; (b) is relevant to an issue at trial; and (c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

This is to squarely address the offensive notion that because someone is sexually liberal in their lifestyle, or has consented to sex in the past, they therefore consented on this occasion. However, much to the surprise of many charged with an offence (or their supporters), it also means that even in instances where individuals are engaged in established relationships involving sexual activity, that fact may not even be presented in evidence unless it is shown that there are “specific instances” of activity in the past that is relevant to the issue of consent on this occasion and that fact has “significant probative value”.

b) Section 276 is a shield for an alleged victim, never for an accused.

Section 276 of the Criminal Code as mentioned above, protects alleged victims, not accused. The rationale behind section 276 of the Criminal Code is to prevent triers of fact, particularly juries, from engaging in prohibited and stereotypical forms of reasoning.

In particular, it is not appropriate in law or fact to assume that because a person has consented to sex in the past, they consent now. It is also not appropriate to assume that because of an alleged victims’ previous sexual activity, they are less worthy of belief. Every instance of sexual activity must be independently consensual and section 276 seeks to protect that rule of law.

I add this emphasis because it must be pointed out that these protections do not apply to an accused. So, if an accused has engaged in questionable sexual activity in the past (as portrayed in the case of Mr. Ghomeshi’s own Facebook admissions), that is not protected by section 276 of the Criminal Code.

Therefore, there is no statutory prohibition against a prosecutor raising these previous acts of sexual activity and argue that the accused is therefore less worthy of belief in the present instance. The “twin myths” that are prohibited lines of reasoning when assessing testimony of an alleged victim is, at least statutorily, fair game as it relates to the accused.

However, the prosecutor is not permitted to simply raise past instances of bad character unless it falls into a similar fact pattern or behaviour that makes is unique enough to be worthwhile for consideration. The test for the admissibility of similar fact is somewhat strict but there is considerable deference afforded to the trial judge in making that decision.

To make matters more troubling for an accused who is tried before a jury: even if a similar fact application is denied, that jury may still hear about previous disreputable acts and simply be instructed by a judge to asses them independent of each other. If granted, the disreputable acts may be used to bolster another alleged victims credibility. Needless to say, a jury hearing about other acts may be strongly tainted in the process in their reasoning. Note that in comparison to the 276 issues, a jury would not hear about any previous sexual acts of an alleged victim unless the motion is granted and the defence has met the borden.

At least in this limited regard as it relates to the consideration of previous sexual activity and assessment of credibility, there is actually more protection for an alleged victim than there is an accused.

c) Questions must be relevant and not unfairly prejudicial or abusive.

Beyond the questions that are statutorily prohibited by section 276 of the Criminal Code, there is also the question of relevance a defence lawyer must follow.

In her article, Ms. Garosinno points out a number of “sample questions” that arise during a criminal trial. Most of these questions would be objected to by the prosecution unless shown it is relevant to an issue at trial. Some questions are less difficult to show relevance upon (questions relating to how well they remember the alleged incident), and some are exceptionally difficult to show relevance on and frequently denied (therapeutic/psychiatric records).

What cannot be assumed in reading her article is that these sorts of questions are permitted as a matter of course. Indeed, many of these questions are quite problematic and objectionable by a prosecutor.

If, for example, there is no “air of reality” to the defence of consent, then those questions ought to be properly rejected by the judge. If Facebook posts relate to activity that has nothing to do with the complaint, or is prejudicial, those questions also ought to be (and usually are) prohibited by the Court.

Reading the questions sampled by Ms. Garosinno may leave some with the impression that defence counsel have a carte blanche to ask questions about a person’s promiscuity, medical issues, general use of drugs and alcohol, or dressing a certain way – quite simply, they don’t. However, if these issues relate to a specific issue at trial then the Court ought to rightly be able to permit defence lawyers to ask questions that relate to their client’s defence but that relevance must be established and not simply put forward to taint the witness.

d) All relevant evidence must be considered if the judge or jury is to reach a just result.

Would it not be unfair to prevent defence lawyers from asking why a complainant is laughing, partying, and not showing the injuries claimed in a photograph with her friends 2 minutes after the alleged incident? Would it be unfair to permit defence counsel to ask if he or she has trouble remembering the details in a historical complaint? Would it be unfair to ask about some sort of gain when there may be evidence to suggest the complaint was triggered by something else(for example, being caught in the course of consensual infidelity, or financial gain)?

None of these issues are determinative (for example a person might indeed appear happy 2 minutes after a sexual assault in a picture, a spouse might also have walked into a sexual assault rather than infidelity) but must be recognized as integral in assessing the overall veracity of complaints and defence.

Keep in mind, that difficult evidence must be addressed by both sides; the defence is not immune from difficult questions or evidence that makes them appear guilty – even if they are factually innocent.

e) The therapeutic records of a complainant are exceptionally difficult for the defence to view, and use during the course of trial.

The therapeutic records of an alleged victim are not disclosable by the Crown, nor are they producible to the defence by way of subpoena unless a very strict set of criteria is met under section 278 of the Criminal Code. Again, in reading the above-mentioned Huffington article, one is left with the impression that this is fair game when it is not.

Next to solicitor-client privilege, national security, and confidential informants, there are very few matters of potential evidence guarded as closely and fiercely by the law as the therapeutic records of an alleged victim.

What is defined as a “record” and subject to the extensive protections is very broad. It includes everything from doctor and psychiatric records, to even prior police occurrences about sexual complaints. Essentially, anything that is disclosed to a third party as it relates to sexual activity – even activity that forms the subject matter of the charge alleged against an accused – is protected under this strict regime.

In the process of maintaining privacy over these records, a complainant is entitled to have their own court-appointed (or private) counsel to defend their privacy interests protected under section 278. The records are so strongly guarded that the defence must establish likely relevance even before the Court can view them. From there, the Court alone would look at them and consider a rigid test on the issue of disclosure to defence. In essence, it is only in the clearest of cases where it is essential to the defence of an accused that such records are disclosed.

This section, if understood, should offer considerable comfort to an alleged victim in coming forward. Sadly, the article mentioned above seems to portray the opposite picture.

4. Allegations of sexual abuse ruin lives. Before this happens, a just court system needs to be sure it is right in its conclusion.

Sexual assaults and molestation are likely the most reprehensible acts in society. Next to “terrorist” there is probably nothing worst than being called a “sex offender”. To put it another way, a person is placed into protective custody for sex offences – even criminals think you don’t deserve to live.

Stigmatization, disgust, and vengeance aside for acts committed, even an allegation causes irreparable harm to an individual’s reputation in the community. For better or for worse, modern society does not forgive sex offenders – and often not even the ones only accused of being them.

A conviction for sex crimes results in significant sentences – with the assumption being incarceration. In addition to the communal stigmatization there is a governmental stigmatization and categorization that occurs as well. Under provincial and federal legislation that the offender will be placed on sex offender databases for many years, and often for life.

Many would argue, perhaps quite rightly, that sex offenders should be stigmatized in the manner they are. Even if this is true, one must start with the premise that they are “sex offenders”.

Until they are convicted by a Court, they are only assumed to be sex offenders. Legal presumptions aside, it is overwhelmingly the case that only the accused and the complainant know the truth to the matter – even then, both often honestly believe in different interpretations of what occurred.

5. A sexual assault trial is difficult for everyone involved, not just the complainants.

No one in their right mind enjoys participating in a sexual assault trial. Not the complainant, not the accused, not the judge, jury, or lawyers. They are very emotional, stressful, and often uncomfortably descriptive.

Repeatedly we hear how difficult a sexual assault trial can be for a victim. Very true. It is a terrible experience for any victim to have their evidence tested and challenged. Even for an experienced police officer, testifying is a very stressful experience. That stress is only heightened when a person is a victim of a sexual assault.

However, we never hear of how difficult it is for an accused who claims they are innocent. We never hear how difficult it is for someone who is acquitted of a crime and how they have to pick up the pieces of their lives after being considered a sex-offender. In an editorial to the National Post in 2012, I wrote the following:

I practise exclusively in criminal defence law and of that, I would say about 40% of my cases are sexual in nature. All too often people’s reputations are destroyed on the drop of a press release, with no regard for correcting that once an individual is acquitted. A very large majority of my cases have resulted in withdrawals or acquittals, but none of those individuals have ever been able to restore their lives to what it was before. What is more troubling is that this attitude is reinforced by the system itself. Every police force I have dealt with refuses to destroy a person’s record and fingerprints, even after an acquittal. To make matters worse, they will then go on to disclose that information to anyone who requests a certain type of police check (i.e. a “vulnerable persons’ screening,” used before hiring gym coaches or paramedics). The police will argue that they will indicate the charge was “withdrawn” or “acquitted.” However, an employer will undoubtedly ask why the police would even disclose such information unless it had merit or there was something more to it. Any way you look at it, being charged with a sexual assault will ruin your life, unless you run your own business doing roofing or fixing small motors.

It is a very unsympathetic and unfair world for those who have been wrongfully accused and I don’t see the courts stepping in anytime soon to do anything about. I am in the process of bringing such a case through the system right now and I can only hope that my client does not run out of money in funding this huge undertaking in challenging police policies of this nature, and that the Court of Appeal will ultimately say that these practices infringe an individual’s rights on several levels. Anyway, great column. And my advice to anyone is to keep the door of your office open, and never coach children’s sports or babysit.

Those words remain true in my opinion today. We cannot avoid the difficulties in the criminal justice system. It is not a pleasant experience because any time we are seeking the truth from conflicting accounts, it is going to be unpleasant. Suffice to say that the difficulties, stress, emotions, and costs is not a one-sided affair.

6. Statistics relating to sexual assault, all assume the complaint is true.

According to the Huffington Post, there are 460,000 sexual assaults every year that go unreported. It is further claimed that 33 out of every 1,000 sexual assault cases are reported to the police, and 29 are recorded as a crime.

Sexual assaults, at least under the Criminal Code, would include any act or gesture that is sexual in nature or the interferes with an individuals sexual integrity. This includes everything from grabbing a person’s buttocks to penetrative intercourse. It may even include acts that are not with a sexual intent, but the assault is such that it violates their sexual integrity (such as slapping someone’s genatalia as a joke – perhaps in a football locker room for example).

This is not to minimize the serious nature of sexual assaults, but simply to clarify what is meant when reports are made in the news of unreported sexual assaults.

Another factor that must be considered in assessing these statistics is that I can only assume that when these statistics are measured, there are extrapolated on existing information (since they are, by definition, “unreported”).

Lastly, when statistics are being measured, it is highly improbable that the focus is on the veracity of these complaints. Undoubtedly the vast majority of these incidents have merit and fall within the definition of sexual assault, but without testing the extrapolated data and simply accepting a claimed incident as being a sexual assault, must cause some unreliability of these statistics.

In short, no statistician is going to assume that a certain percentage of these unreported complaints are false. If so, what is the rate of that? My assumption in interpreting this data is that it too makes assumptions of infallible veracity in the complaints – something that is very difficult to accept unreservedly.

7. Empowerment over protection.

The criminal justice is paternalistic and protectionist. It assumes, wrongly in my view, that victims need to be protected and that victims are not strong enough on their own. From my experience over many years in defending accused and representing victims, this is not true.

Victims are strong, credible, and articulate when empowered and informed; we are all weak in the darkness.

From what I have seen, victims rarely seek more protection, they seek knowledge and familiarity with the process. They seek confidence. They seek to be heard. They seek justice and fairness. And fairness is something the Canadian justice system can and does deliver in its present form.

The power of empowerment is seen clearly in the recent and simple example of #BeenRapedNeverReported on Twitter. Confidence and trust in the justice system encourages reporting. Sadly, articles and attitudes of the justice system’s failure will only seek to deter victims from coming forward even more. No one will participate in a system they believe to be a forgone conclusion.

It’s my hope that this article has given even one person the confidence to come forward and have confidence in a system that is fair and respects victim as much as they respect the rule of law and the right to a fair trial. Confidence is a product of knowledge.

– Sean Robichaud