Reaction to the decision in the Jian Ghomeshi case has been swift. In his written decision (http://www.canlii.org/en/on/oncj/doc/2016/2016oncj155/2016oncj155.html), Justice William Horkins of the Ontario Court of Justice found Mr. Ghomeshi not guilty of all charges (four counts of sexual assault and one count of overcoming resistance by choking). Ultimately, Justice Horkins determined that the Crown was unable to prove Mr. Ghomeshi’s guilt beyond a reasonable doubt.
At paragraphs 122-123 of the decision, Justice Horkins wrote:
Interwoven with the presumption of innocence is the standard of proof required to displace that presumption. To secure a conviction in a criminal case the Crown must establish each essential element of the charge against the accused to a point of “proof beyond reasonable doubt”. This standard of proof is very exacting. It is a standard far beyond the civil threshold of proof on a balance of probabilities.
The law recognizes a spectrum of degrees of proof. The police lay charges on the basis of “reasonable grounds to believe” that an offence has been committed. Prosecutions only proceed to trial if the case meets the Crown’s screening standard of there being “a reasonable prospect of conviction”. In civil litigation, a plaintiff need only establish their case on a “balance of probabilities”. However to support a conviction in a criminal case, the strength of evidence must go much farther and establish the Crown’s case to a point of proof beyond a reasonable doubt. This is not a standard of absolute or scientific certainty, but it is a standard that certainly approaches that. Anything less entitles an accused to the full benefit of the presumption of innocence and a dismissal of the charge.
Throughout the decision, Justice Horkins catalogued a number of instances in which he found witness testimony to be lacking credibility. His thoughts about each complainant’s testimony are summarized in the following passages from the decision:
L.R. (the first complainant):
L.R.’s evidence in-chief seemed rational and balanced. Under cross-examination, the value of her evidence suffered irreparable damage. Defence counsel’s questioning revealed inconsistencies, and incongruous and deceptive conduct. L.R. has been exposed as a witness willing to withhold relevant information from the police, from the Crown and from the Court. It is clear that she deliberately breached her oath to tell the truth. Her value as a reliable witness is diminished accordingly. (Paragraph 44 of R v Ghomeshi)
Lucy DeCoutere (the second complainant, who wished for her name to be made public):
I]t is the suppression of evidence and the deceptions maintained under oath that drive my concerns with the reliability of this witness, not necessarily her undetermined motivations for doing so. It is difficult to have trust in a witness who engages in the selective withholding relevant information. (Paragraph 94 of R v Ghomeshi)
S.D. (the third complainant):
S.D. was clearly “playing chicken” with the justice system. She was prepared to tell half the truth for as long as she thought she might get away with it. Clearly, S.D. was following the proceedings more closely than she cared to admit and she knew that she was about to run head first into the whole truth. (Paragraph 118 of R v Ghomeshi)
In sum, Justice Horkins felt “forced to conclude that it is impossible for the Court to have sufficient faith in the reliability or sincerity of these complainants. Put simply, the volume of serious deficiencies in the evidence leaves the Court with a reasonable doubt.” (Paragraph 139 of R v Ghomeshi)
I must admit that, in following this case, I have struggled to reconcile my feminist views and my social justice concerns with my belief in the importance of maintaining a very high burden of proof in criminal cases in order to guard against miscarriages of justice.
However, at the end of the day, while our criminal justice system is far from perfect, I’ve come to the conclusion that it is absolutely vital to maintain the standard of proof beyond a reasonable doubt in all criminal cases—regardless of the nature of the allegations.
Cases like this are very difficult. Quite often, in the absence of physical or other corroborating evidence, they boil down to “he said, she said” disputes.
An acquittal does not necessarily mean that the judge believes the accused or disbelieves the complainant(s). In fact, in many cases, the judge may state a belief that the accused is “probably” guilty. But of course that is not sufficient to ground a finding of guilt.
It is true that in the absence of supporting evidence, a complainant’s testimony will be subjected to an extreme level of scrutiny. This is because in “he said, she said” cases, the complainant’s testimony is often the only evidence that can possibly form the basis of a finding of guilt.
“proof beyond a reasonable doubt”
Therefore, it is also true that “the system” given Charter protections that include the right to a fair trial and the presumption of innocence—is slanted in the accused’s favour in cases that are not clear or straightforward.
But that is only part of the story. Criminal cases should not be perceived as “a complainant against the accused.”
In a criminal case, the two parties to litigation are the state (the Crown) and the accused (the defence).
We have an adversarial system because we—as a society—believe that this gives fair footing to the individual facing the full wrath of the state. However, in looking at the bigger picture, the state will always have a distinct advantage in this struggle. Though it has the higher burden, it also has far more resources at its disposal.
The budget of an accused individual (even one with the relative fame and fortune of Mr. Ghomeshi) is significantly less than that of the state agencies responsible for investigations and prosecutions.
In the Ghomeshi case, there were deficiencies in the police investigation and in the prosecution itself. Mr. Ghomeshi’s lead counsel, Marie Henein, showed once again why she is arguably the top criminal defence lawyer in the country.
As I have written in this space previously (http://www.londoncriminaldefence.com/danger-short-cuts-to-injustice/), if we, as a society, were to do as protesters and those unaccustomed to “seeing justice be done” want us to do and preclude defence counsel from asking questions that target a witness’ credibility, we risk undermining the very bases of our criminal justice system: the rule of law, the right to a fair trial, and the presumption of innocence.
In the criminal context, we cannot lower our high standards for the sake of desired results. If we begin to do that, we risk turning our system into one in which allegations are immediately equated to proven facts and where accusations automatically become findings of guilt.
In the 1760s, Sir William Blackstone developed what has been termed the Blackstone ratio, which holds: “It is better that ten guilty persons escape than that one innocent suffer.”
If we plan to lower the standard of proof, we must be prepared to deal with the consequences—including turning our backs on the Blackstone ratio.
It is also worth noting that there are other—non-criminal—arenas (for instance, the civil system) where proof that someone is “probably liable” (on a balance of probabilities) is sufficient to ground a finding against the defendant.