Opinion » Maxed Out

A justice system worth standing up for



In 20 years of writing a weekly opinion column I've tweaked numerous noses, tied powerful knickers in knots, been called a lot of names and even been threatened a couple of times. But it wasn't until this week, through the magic of social (sic) media, someone labelled me a misogynist.

Moi? Misogynist?

It wasn't because I'd written anything denigrating, dismissive or disrespectful towards women. It was because I wrote something supporting last Thursday's decision by Ontario Justice William Horkins finding Jian Ghomeshi not guilty of the sexual assault charges laid against him. Having the temerity to stand on the wrong side of someone's ideology was enough for them to dismiss anything I had to say by labelling it and me misogynistic.

Casually tossing out epithets like misogynist or racist is a good way to bring an honest debate to a screeching stop. It signals complete dismissal of anything said or to be said. It invalidates both opinions and persons. It is the last resort of a small, closed mind. It is the intellectual equivalent of taking one's football home because one doesn't like the way the game is developing.

I'm not going to parade my bona fides as a feminist. I will say they date back to the early part of the movement and a time when many people in this town were only a glimmer in their future parent's eyes.

Instead, I'd rather present a primer on Canada's criminal justice system, since that seems to be something about which there is an almost bottomless pool of ignorance. In the case of criminal justice, ignorance can kill... or at least throw someone in prison for a very long time.

Criminal courts seek "justice" for the victims of crimes. But this is where most people go off track. They don't know who the victims are. They mistake the aggrieved party or parties for the victims, the women allegedly assaulted in this case or the injured or killed people in a drunk driving case.

Criminal cases are brought on behalf of all of us. The Crown, the people, the collective, the social contract. A crime is committed — at least in the eyes of the criminal judicial system — against all of society. It's the act of an individual or individuals against the society in which they live.

This distinction has been blurred over the past several decades by victims' rights movements that have advocated, perhaps too successfully, to shine the spotlight on the individual victims of crimes. Their biggest victory has been the now de rigueur recitation of victim impact statements in sentencing hearings. It is an easy, seductive and even logical mistake to make. That's because the language of the law is arcane and chockablock with terms of art — words that mean one thing within the context of law are often quite different from what they mean in a lay dictionary sense.

Terms of art are traps in all professions. They're shorthand for people who understand them and, at their worst, barriers to entry for people on the outside. Legalese is rife with terms of art; justice is one.

Most dictionaries define justice in terms of moral rightness, lawfulness, equity. Most people think of justice as doing the right thing, a wrongdoer getting what he or she deserves. Yet somewhere way down the list, or completely absent in many dictionaries, is the lay definition that comes closest to the meaning of justice in the legal system: judgment of persons or causes by judicial process.

Justice in criminal law is the outcome of a process, often a trial. If both sides, Crown and defence, follow the rules of procedure and evidence, if both sides do a reasonably apt job of presenting and defending their respective cases, the result, the verdict, is justice.

If that sounds a bit cynical I challenge you to develop a better system.

One of the things that's often overlooked in a case as distasteful as Ghomeshi's is the relative power imbalance that underlies it. This was not a case of three aggrieved women against their alleged abuser. It was the full power of the Crown, the State, against an individual. It was the power of the State's agents — the police and prosecutors — against an individual. In this case it was an individual with the financial wherewithal to hire one of the best defence lawyers in the business. But more often than not, it's that same power arrayed against someone far less able to present a counterbalance.

Not infrequently, this imbalance of power results in wrongful convictions. High profile Canadian examples include Donald Marshall, David Milgaard, Guy Paul Morin and Stephen Truscott. Too many examples south of the border include people lawfully executed by the government and those barely saved from execution.

So was Jian Ghomeshi innocent? No. He was found not guilty. That is not a distinction without a difference. He was not guilty because the Crown failed to prove the case against him beyond a reasonable doubt. That's the standard for criminal convictions and it is a necessary safeguard, albeit one that still fails to prevent wrongful convictions.

He was not guilty because the judge found the witnesses against him were not credible. They weren't credible because they failed to tell the truth about their post-assault dealings with the man who alleged assaulted them. That failure was only brought to light when they were cross-examined. The effect was both devastating and predictable.

In a criminal case, the judge or jury only has the evidence presented during the trial to base their verdict on. Evidence doesn't include what might have happened, what we "know" happened or what we assume happened. With the evidence before him, Justice William Horkins wasn't looking at guilt beyond a reasonable doubt. It wouldn't have mattered whether William Horkins or Jennifer Horkins were deciding the case. It wasn't a misogynistic verdict.

For any judge to have found guilt beyond a reasonable doubt, the criminal justice system would have had to find the simple accusation of assault sufficient for conviction. I shudder to believe even the most ardent women's rights advocate would find this quantum of proof sufficient to convict.

It is likely this case will bring about changes in the way future, similar cases are tried. It may change the way they're investigated. It may change the way witnesses are prepared. It may encourage witnesses to be more forthcoming about behaviour they think might weaken their case. It may improve the way prosecutors present expert testimony on how victims of sexual assault act towards their aggressor after the fact.

The legal system has changed in the past. It no longer allows the defence to parade a complainant's past sexual history as a mitigating factor. It will change in the future.

But none of us should hope it reduces the standard to something less than beyond a reasonable doubt. For defending that, you can call me anything you want.


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