Reminder: Beyond A Reasonable Doubt is a Pillar of our Justice System

criminal lawIn the post-Ghomeshi trial hoopla, many seem to question the integrity of Canada’s criminal justice system. Hashtags, slogans, movements and even possibly legislation have been the ripple effects of an ever increasing angry public after Jian Ghomeshi was acquitted of his charges. Much to some of the public’s dismay, yet another acquittal has been handed down from Canadian courts. This time, three officers— Joshua Cabero, Leslie Nyznik and Sameer Kara— were acquitted on August 9, 2017 after a lengthy trial in which these officers were accused of sexually assaulting a female parking enforcement officer in a hotel room.

Perhaps not so coincidentally, a female judge— Her Honour, Justice Anne Molloy— was scheduled to preside over this trial. In her written decision released on August 9, 2017, Justice Molloy gave the public a much needed reminder that the Crown’s burden of proof is a pillar of our justice system that cannot be lowered, despite how unfortunate or upsetting the allegations may be.

The slogan and hashtag “believe the victim” has become an increasingly popular statement of protest against the justice system…  The slogan and hashtag “believe the victim” has become an increasingly popular statement of protest against the justice system because there is an ever increasing popular belief that the justice system gives no justice to complainants in sexual assault trials. However, Justice Molloy aptly addressed this phenomenon head on in her written reasons:

“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.”

Put simply, the complainant was inconsistent in her testimony in important ways. Most notably, she was inconsistent with regards to how intoxicated she remembered to be during the incident. She testified that she experienced blackouts, was unable to move and was inebriated. However, a toxicologist testified that her blood alcohol content at the time, consistent with what she testified to having consumed, would make it almost impossible for her to experience such symptoms. In addition, the toxicologist testified that if she were subject to any common “date rape drug”, the symptoms would have been apparent within 15 minutes to 30 minutes of ingestion, and disappeared within 30 minutes after the symptoms became apparent. These inconsistencies brought out through cross-examination and defence evidence were key in assessing the credibility of the complainant’s testimony.

In her written decision released on August 9, 2017, Justice Molloy gave the public a much needed reminder that the Crown’s burden of proof is a pillar of our justice system that cannot be lowered, despite how unfortunate or upsetting the allegations may be. However, the public should take note that Justice Molloy also considered some of the complainant’s testimony and defence evidence argued to be relevant by the defence as irrelevant, and reminded everyone that “rape myths” and stereotypes about sexual assault victims have no place in the courtroom. Her Honour powerfully stated: “[w]hat a woman wears is no indication of her willingness to have sexual intercourse, nor can it be seen as even the remotest justification for assuming she is consenting to sex.”

Her Honour also addressed the stereotypes that were presented by the defence about the complainant’s behaviour after the alleged incident: “[a] woman who has been the victim of a sexual assault will not necessarily exhibit immediate symptoms of trauma. She might, or might not, be weepy. She might, or might not, be depressed and withdrawn. She might, or might not, be hysterical. Or she might cover up any of those kinds of emotions with an exterior of jocularity.” “There is simply no ‘normal’ or typical,’” Her Honour goes on to say, “I have not taken any of this conduct into account in reaching my decision.”

In addition, her Honour expressly stated in her reasons that she didn’t believe large parts of Mr. Nyznik’s evidence, who was the only accused to take the stand. She was not even sure if she could believe his evidence on the most important point of litigation in this trial: whether or not the complainant consented.

The accused does not need to prove his or her innocence, nor does a verdict of not-guilty mean that an accused is innocent.However, it is the Crown’s burden of proof to prove that the crimes are alleged have occurred beyond a reasonable doubt. Despite a team of three prosecutors and months of preparation, the Crown was not able to do so in this case. Her Honour then, despite her criticism of Mr. Nyznik’s testimony, must, in accordance with our laws, find the three accused not guilty. To not do so would be a miscarriage of justice. The accused does not need to prove his or her innocence, nor does a verdict of not-guilty mean that an accused is innocent. It simply means that the Crown failed to meet their burden of proof. Without that burden, our justice system would be unrecognizable, and would fail to serve any justice at all.

 

Authors:

Melody Izadi

Melody is a criminal defence lawyer with the firm Caramanna Friedberg LLP, located in Toronto, Ontario.

 


A Publication of CPLEA