Experts are saying there is no easy solution to what some are calling a flawed justice system, brought up due to the Jian Ghomeshi trial.
Ghomeshi, the ex-host of the CBC‘s radio show Q, is currently being charged with sexual assault and choking. Three women have testified against Ghomeshi in a much publicized and talked about trial earlier this month.
Some people, including many feminists, have expressed frustration over Ghomeshi’s lawyer, Marie Henein, and the tactics she used to attempt to convince the court that the complainants’ testimonies lack credibility.
“It’s not the information they left out that matters, as Ghomeshi’s lawyers would have it; it’s what they left in,” Susan Cole, a feminist activist and writer, wrote in a NOW Magazine article.
In the weeks since the testimonies, people on social media, bloggers and columnists have debated whether Canada’s justice system has failed sexual assault victims.
Many feminists have come forward saying that perfect victims don’t exist, and that cases like these discourage sexual assault victims from coming forward. A recent CBC article focuses on “Jane”, a woman who, after watching the Jian Ghomeshi trial unfold, believes she did the right thing by not pressing charges after she was sexually assaulted.
Lisa Dufraimont, a professor at Osgoode Hall Law School at York University, said, “The discussion on social media seems to reflect the view that it would be easy to solve this problem, like just do X or Y.”
According to Dufraimont, in an ideal world, the courts would create a perfect balance between providing complainants with respectful treatment, along with having fair trial rights for the accused. However, “it is very difficult to do,” said Dufraimont.
Dufraimont said that the trial is there to test the credibility of complainants, and while it is an unfavourable experience to have complainants’ memories questioned, it is the “method of fact-finding.”
Since 1985, the Criminal Code prevents defence lawyers from questioning a complainant’s history of sexual relationships. The Criminal Code was also amended in 1997 to prevent defence lawyers from accessing a complainant’s private records. Many of these changes have been made in an effort to encourage people who have been sexually assaulted in coming forward without fear.
According to a 2014 report from Statistics Canada, more than 20,000 out of 553,000 women who suffered from sexual assault reported to police.
Criminal defence lawyer Robb MacDonald said it’s unfortunate that the complainants in Ghomeshi’s trial were scrutinized the way they were.
On the other hand, MacDonald said that a lawyer’s greatest priority is preventing innocent people from going to jail. That’s why important inconsistencies must be pointed out in a trial, he said.
“These are cases where someone’s life is on the line,” MacDonald said.
But in terms of reforming court procedures in sexual assault cases, Lisa Taylor, a former lawyer and Ryerson University journalism professor, asks, “What’s the alternative?”
Taylor, who also advocates for sexual assault complainants’ freedom to publicly speak about their experience, said, “I’m in total agreement that it’s an ugly system, that it’s painful to watch, but I don’t have a clue what a better system is to ensure that people who are facing the possibility of going to prison are fully defended and those that accuse them of something are defended.”