Sexual assault trials: Experts call for alternatives to Canada's current court system
Separate courts for sex assault trials, restorative justice and more education touted as options
But restorative justice only works, MacGregor said, when the individual who has done the wrong is genuinely contrite and willing to take responsibility for their actions.
"That very, very rarely happens," she said.
I think that restorative justice solutions pretty much need to go hand-in-hand with guilty pleas.
You can't fight your charges tooth-and-nail, and then when that doesn't work, fall back on "let's just work together to make things right".
One thing some of these articles has brought up: Do we not have a system of "legal-aid" in canada where those who cannot afford a lawyer are given access to one? The revelation that complainants in SA cases (or in any kind of case for that matter) don't have access to lawyers or legal advice is really troubling.
How could any layperson navigate the justice system without one? That seems really stacked against people
One thing some of these articles has brought up: Do we not have a system of "legal-aid" in canada where those who cannot afford a lawyer are given access to one? The revelation that complainants in SA cases (or in any kind of case for that matter) don't have access to lawyers or legal advice is really troubling.
How could any layperson navigate the justice system without one? That seems really stacked against people
Victims aren't considered "parties" in criminal cases. They don't have an automatic right to appear and make arguments like the accused does. That's why they are not usually entitled to public funding for legal representation.
yeah the whole thing about "an offence against the state has been committed" thing is also really weird to me. it seems like a major barrier to fairness in the legal system to me
All sorts of offences are against individuals. The criminal law recognizes that clearly.
The trade off, though, for giving the state the authority to prosecute and imprison people (along with all of the accompanying resources and $$$) is that criminal justice proceedings can not be driven by an individual's desire for vindication, revenge or even just recognition. Public interest - and impartiality - has to predominate.
I don't deny that it can be a harsh trade-off or imperfect solution, particularly for complainants.
I don't deny that it can be a harsh trade-off or imperfect solution, particularly for complainants.
True, though there are cases that illustrate how important that is is that way, and how things go sideways when that is ignored.
I am thinking of the Vince Li case, which saw the family of the man he killed getting press coverage about their opinion that he needed to be held responsible, even though he was not.
And the province of Manitoba taking the bizarre step of knuckling under to public pressure, and overriding doctors' decisions that Li be able to get fresh air on the grounds of the institution where he was being held.
Bottom line is, even if they wanted an eye for an eye, it isn't perfect, because it isn't going to give them what they really want.
I am no lawyer or civil rights expert so maybe there is something unspeakable in this suggestion but I think in cases of sexual assault the alleged perpetrator should have to take the stand because it is almost always word against word. The only alternative is that the women are put on trial.
This blogger is now on incident 22
http://rabble.ca/blogs/bloggers/svea-vikander/2016/02/day-22-jian-ghomes...
It is not each individual experience that is so dreadful it is the mundane repetition in so many women's lives.
ETA: I had a whole response to Pondering's query but I've decided to shelve it.
I think in cases of sexual assault the alleged perpetrator should have to take the stand because it is almost always word against word.
If they plead not guilty, then that's their word, and that's all the state can compel them to say. Beyond that, it's up to the Crown to prove them guilty, and yes, it would be a bit odious if the Crown could compel a defendant to help them with that.
The only alternative is that the women are put on trial.
They would certainly be the only ones being questioned or cross-examined, but they're not "on trial". At worst, the defendant will be acquitted, but the complainant won't be going to jail, receiving a criminal record, etc.
I think in cases of sexual assault the alleged perpetrator should have to take the stand because it is almost always word against word.If they plead not guilty, then that's their word, and that's all the state can compel them to say. Beyond that, it's up to the Crown to prove them guilty, and yes, it would be a bit odious if the Crown could compel a defendant to help them with that.
The only alternative is that the women are put on trial.They would certainly be the only ones being questioned or cross-examined, but they're not "on trial". At worst, the defendant will be acquitted, but the complainant won't be going to jail, receiving a criminal record, etc.
It makes destroying the women's credibility the only line of defence. Very little was said about Ghomeshi.
On a separate topic I am not offended by this because I read the cartoon differently.
http://www.thestar.com/opinion/public_editor/2016/02/19/cartoonists-and-...
Ghomeshi did combine romance and violence and it is typical of abusive men. It is core to what throws women off, confuses them, make them see the violence as "not that bad" or the man as "injured soul".
It makes destroying the women's credibility the only line of defence.
That's about all defense counsel ever has to work with.
1. challenge the credibility of the complainant
2. challenge the credibility of witnesses
3. challenge the credibility of police
4. challenge the credibility of forensic evidence
If #'s 2, 3 and 4 don't apply, that leaves only #1. But I can't see how counsel could ever defend an accused while at the same time acknowledging that the complianant's story is the truth, the whole truth and nothing but the truth.
On a separate topic I am not offended by this because I read the cartoon differently.
It was a bid edgy -- the phrase "too soon??" comes to mind -- but given that the butt of the joke for the other 3/4s of that cartoon were Kim Jong Un, Donald Trump, and Trudeau/the House of Saud, I'm inclined to agree that the cartoonist was pointing his pen at Ghomeshi.
pookie: interesting, i think the main problem is that of a lazy or uninterested crown prosecutor? it just seems like they made no effort to gather evidence of their own or even do much to try an counter the narratives offered by the defense.
like, i get the feeling the legal team on the womens side just didn't even try and make much of a case. didn't present any new evidence, didn't call any witnesses, etc. seems like something needs to change to allow people to have a little more agency in their own cases.
ike, i get the feeling the legal team on the womens side just didn't even try and make much of a case. didn't present any new evidence, didn't call any witnesses, etc.
Was there evidence the judge didn't hear about? Were there witnesses to this that the judge didn't hear from?
well there was the witness that declined to testify via skype...they could have made more effort to have her testify instead of submitting a useless "statement" ...though i wonder if the witness herself actually decided to to participate after all the emails came out? the idea there was no other friends the women would have told (over 13 years) is strange
either the prosecutors felt the jig was up, or they didnt try... i can't think of any other explanation
well there was the witness that declined to testify via skype...they could have made more effort to have her testify instead of submitting a useless "statement"
As I understand it, that witness' sole contribution was to corroborate DeCoutere's testimony that she had complained of Ghomeshi's conduct prior to a given time. Flying her in from the East coast (during a snowstorm) just to testify "yes, Lucy told me about this in August of that year" wasn't really necessary. The Crown, the defence and the Court accepted her sworn statement.
Mr. Magoo, are you really sure? Don't take my word as gospel but I was under the impression that the defence presented evidence to show that two of the complainants were in regular communication with each other and compared notes despite strict Crown warnings telling them not to do so. These emails were presented by the defence to suggest that the two women doctored their stories to make their statements sound similar. That is why the lady from Nova Scotia was asked to testify, that Lucy shared her experience with her many years ago, so her statements were not doctored as was suggested by the defence team.
I think what Magoo is saying is that the final witness' statement could be evaluated by the judge without having to fly her in. It's admissible and he is entitled to accept it beyond a reasonable doubt.
but the statement certainly carries minimal weight since the it can't be cross examined or anything like that. My impession is a written statement is not something courts take very seriously...my question is, how could they not convince a supposed friend of one of the complainants to testify by skype? seems wierd.
it would have been one of the most valuable pieces of testimony in the entire trial and not having that--i think-- certainly hurts their case.
Mr. Magoo, are you really sure? Don't take my word as gospel but I was under the impression that the defence presented evidence to show that two of the complainants were in regular communication with each other and compared notes despite strict Crown warnings telling them not to do so. These emails were presented by the defence to suggest that the two women doctored their stories to make their statements sound similar. That is why the lady from Nova Scotia was asked to testify, that Lucy shared her experience with her many years ago, so her statements were not doctored as was suggested by the defence team.
Ya, that's pretty much my understanding too.
it would have been one of the most valuable pieces of testimony in the entire trial and not having that--i think-- certainly hurts their case.
Given that the defence, the Crown and the judge all accepted a sworn statement suggests to me that nobody saw any particular need for any further questioning of that witness -- what would saying the same thing verbally on Skype have added?
And I can't see how being cross-examined by Henein would have been somehow better.
but the statement certainly carries minimal weight since the it can't be cross examined or anything like that. My impession is a written statement is not something courts take very seriously...my question is, how could they not convince a supposed friend of one of the complainants to testify by skype? seems wierd.
it would have been one of the most valuable pieces of testimony in the entire trial and not having that--i think-- certainly hurts their case.
I think you are mistaken. If this written statement was entered into evidence without objection by the defense then it is of the same force and effect as if they had flown the witness into town. The defense agreeing to enter it into evidence implicitly says they accept it at face value and have no need to cross examine the witness on it.
Agreed. The statement is in like any other piece of evidence.
One quibble though - I don't think the failure to insist on cross-examination means that the judge MUST accept the statement as is. He is entitled to evaluate it in light of other evidence, and accept or reject as he sees fit.
Sorry Mr. Magoo. I misread your post.
No worries. I sometimes mistype them.
what i mean is if the prosecutors were serious in trying to win the case, they could have examined this witness in detail and perhaps gotten some useful information from her, since she is so far the only person who can sort of corroborate the story.
A written statement , regardless if it's accepted, will carry less weight than testimony which can be cross examined simply because no one can test the truthfulness or credibility of the written statements, which is the esscence of the trial right?
one thinks if the prosecution were serious they would want that evidence to have as much crdibility as possible. it is after all the only 3rd party that was brought forward ( i think) who could corroborate the womens story.
like on judge judy, she'll "accept" a statement occasionallly but it's not considered credible and is usually discarded with little attention--and that's a civil court...
i think the defense accepted the letter because they know that and don't feel it's a threat to their case
(what i was saying in the above post that is)
what i mean is if the prosecutors were serious in trying to win the case, they could have examined this witness in detail and perhaps gotten some useful information from her, since she is so far the only person who can sort of corroborate the story.
A written statement , regardless if it's accepted, will carry less weight than testimony which can be cross examined simply because no one can test the truthfulness or credibility of the written statements, which is the esscence of the trial right?
one thinks if the prosecution were serious they would want that evidence to have as much crdibility as possible. it is after all the only 3rd party that was brought forward ( i think) who could corroborate the womens story.
like on judge judy, she'll "accept" a statement occasionallly but it's not considered credible and is usually discarded with little attention--and that's a civil court...
It's better not to use television shows as a benchmark for what happens in a real-world criminal trial. :)
A written statement generally would not be quite as good as getting someone on the stand...unless the statement is quite minimal.
Let's be honest here - this is a very, very small piece of the Crown's case. Not useless, certainly, but it was unlikely to carry much weight no matter how it got in.
Also, technically, she can't corroborate anything in relation to the attack itself. She can only corroborate that Lucy told her about it. Small but important difference.
People are posting as if Ghomeshi already got off. He hasn't. The case rests on credibility. The judge can still believe the women are telling the truth despite their behavior after the attacks.
i just used judge judy cause i think it's relatable, but as you say it is none the less correct.
i DO however think this evidence could have been the most important for the womens case, since it was the only third party involved (great for credibility) and it was a week after the alleged assault (more credible than anything said 13 years later)
The problem was the written statement seems to contradict what the women said both in court and before the trial ...and the crown lawyers (unless they're incompetent) would clearly see that... so the decision to simply allow that written statement to stand un examined i think was a serious mistake that should not be overlooked
i DO however think this evidence could have been the most important for the womens case, since it was the only third party involved (great for credibility) and it was a week after the alleged assault (more credible than anything said 13 years later)
I'm struggling to understand why you're so set on believing that a sworn statement would NOT add to the credibility of DeCoutere's testimony in this narrow regard, but Skype testimony would.
The problem was the written statement seems to contradict what the women said both in court and before the trial ...and the crown lawyers (unless they're incompetent) would clearly see that... so the decision to simply allow that written statement to stand un examined i think was a serious mistake that should not be overlooked
Assuming that's the case, the Crown should be nothing short of RELIEVED that the written testimony was accepted by all parties at face value. The only person who should be sad that it wasn't picked to pieces on the stand is Henein, and even she didn't seem to care.
magoo:
well, like i said before, since it's not testimony it's doesn't carry the same weight as evidence to the judge. if it's a fairly crucial conversation--which i think it was--i'd like to see it examined as much as possible.
as an impartial observer, i think this third party should have been a bigger part of the trial and could have provided useful insight as to what happened...i just think it's an interesting part of the case that wasn't explored as much as it could have been and it was instead a sort of footnote to the end of the trial.
2nd point:
i wonder though (and this is my point of curiosity) how accurate the statement is, because a court wants to recount the conversation, and the statement just provides a few snippets and no context so it feels like it's missing huge useful chunks of what happened/what was said which will not be filled in with cross examination which, i think, is unfortunate.
well, like i said before, since it's not testimony it's doesn't carry the same weight as evidence to the judge.
Well, and as I said before, if neither the Crown counsel nor the defence counsel felt that this was a problem, they were free to say so, rather than agreeing to it. If this was some huge mistake, shouldn't at least ONE side have felt that was the case??
if it's a fairly crucial conversation--which i think it was--i'd like to see it examined as much as possible.
The conversation could only have established the fact that DeCouterre described the attack many years ago, rather than after the Ghomeshi story became news. Nothing from that conversation could have supported DeCouterre's assertion that the attack happened -- only that she did indeed mention it years ago. Unless that had been a matter of contention, there was nothing more to be added.
magoo:
(first quote) well of course the defense wouldn't bring it up cause it helps their case...i think the prosecution "Should" have delved into this more, but it seems to fit with their pattern of not really trying too hard, like after the emails were brought out they did not try and re-establish the credibility of the witness...all things you'd think they would do if they were actually interested in winning the case, which for me is the reason i find it strange they didn't feel it was important.
(second quote) but the fact that a third party had a description of the events a week after the alleged abuse occured is certainly valuable. a court would like to get a more accurate description of the conversation, state of mind, details etc. since the prosecution essentially has no other evidence i would think they would want to make the most of this..it could also help prove or disprove the allegation that claims of abuse were made up years later and in collusion with the other complainants right?
i think the prosecution "Should" have delved into this more, but it seems to fit with their pattern of not really trying too hard
It was the Crown who called this witness. It makes no sense to say that the Crown should have then challenged her.
Beyond challenging her, there's nothing more to "delve" into. Nothing that she and DeCouterre said in their conversation would have supported the basic claims of the trial. In other words, if DeCouterre told this witness, ten years ago, that Ghomeshi assaulted her, that doesn't add any credibility to the assertion that Ghomeshi assaulted her. All it can (and did) do is support the lesser assertion that DeCouterre didn't recently fabricate this story.
Let me give you a for-instance.
Suppose my neighbour, Bob, and I used to be good friends, but we've had a falling out and now we're not. His neighbour on the other side, Steve, accuses Bob of stealing his lawnmower.
I decide to go to the police, and I tell them that five years ago Bob stole my lawnmower too.
If my complaint against Bob (for stealing my lawnmower five years ago) goes to trial, the trial judge is going to want to be sure that I didn't just make up this story after hearing that Steve accused him, and out of bad blood.
But if I e-mailed my friend Mary, five years ago, to tell her I think that Bob stole my lawnmower then the judge has all the proof they should need that I did NOT make this story up after Steve's complaint gave me the opportunity.
BUT, my e-mail to Mary does NOT prove that Bob stole my lawnmower, nor does it offer any admissible evidence to suggest that.
but the fact that a third party had a description of the events a week after the alleged abuse occured is certainly valuable. a court would like to get a more accurate description of the conversation, state of mind, details etc. since the prosecution essentially has no other evidence
The court's lack of other evidence would not make this "evidence" admissible. As with me and Bob, the fact that DeCouterre told her story ten years ago does not make it any more or any less the truth, from the Court's point of view.
it could also help prove or disprove the allegation that claims of abuse were made up years later and in collusion with the other complainants right?
Yes, and that's ALL it could do.
Magoo you are right the evidence is what is called an exception to the hearsay rule. It was entered to prove that the story was told to a third party prior to the present cases coming to light. The Crown tendered it to prove that single very narrow point and the defense did not object so the Judge will take it as sworn testimony that is unchallenged and therefore presumed to be true. It was not intended nor could it be entered to add weight to the allegation that it was non-consensual because on that issue it is merely hearsay evidence and inadmissible.
The defence did object to the inclusion of evidence from the fourth witness. The arguments for and against the inclusion of evidence from the fourth witness were argued on Day 6 of the trial.
we're thinking of two different things.
i know on the narrow point of corroboration that she "told someone", the letter (as opposed to the originally intended testimony) was their best effort at that, although the original plan (until a snowstorm) was for this person to be at the trial. All i'm saying is that would have been better, for the reasons above, then what actually happened. i mean why was she going to come in the first place then if writing a letter would accomplish the same thing?
http://www.cbc.ca/news/jian-ghomeshi-sexual-assault-trial-1.3502101
Jian Ghomeshi's guilt should not be inferred by the fact all three complainants were steadfast in their testimony that they were sexually assaulted, his lawyer Marie Henein said in her closing arguments at his trial on choking and sex assault charges.
To expect one of the women to suddenly recant in the witness box, she said, "maybe happens on TV" but not in the real world of trial proceedings.
[In cross examination...] Henein methodically went through statements made by the woman to the media, police, the Crown and court, having the witness repeat again and again that she had no contact with Ghomeshi after two alleged assaults.
Clearly, Henein was leading the witness somewhere. She paused during questioning, and presented the witness with an offer — before she went any further, Henein said, she would give the woman "a chance" to come clean and "tell his Honour and this court the truth."
When the woman insisted she had told the truth, Henein unveiled one email, and then another — that had both been sent to Ghomeshi after the assaults allegedly occurred — and one that included a bikini picture of herself.
It was certainly evidence prosecutors were not aware of, and it was not something the witness was expecting.
But it's now up to Ontario Court of Justice Judge William Horkins to decide how much to take into account the doubts raised about the complainants' credibility and whether those questions are enough to sufficiently taint the credibility of their core allegations.
It's an interesting question. Will a cloudy memory of details of an event, to the point of creating an erroneous narrative of having or seeking no contact later, be enough to dispel the firmly expressed allegations of having suffered sexual assault? I guess we'll know soon enough.
It's an interesting question. Will a cloudy memory of details of an event, to the point of creating an erroneous narrative of having or seeking no contact later, be enough to dispel the firmly expressed allegations of having suffered sexual assault? I guess we'll know soon enough.
Not remembering emails is not "creating an eroneous narrative". I'm pretty sure you would have a better memory of being sexually assaulted than of what happened in the days that followed especially if you tried to dismiss the importance of the assault in your own mind and tried to carry on as though nothing had happened.
What this comes down to is whether or not the women convinced the judge that Ghomeshi did assault them.
But it's now up to Ontario Court of Justice Judge William Horkins to decide how much to take into account the doubts raised about the complainants' credibility and whether those questions are enough to sufficiently taint the credibility of their core allegations.
Decision tomorrow, apparently.
Following the live blogging of the judge's decision on CBC.ca. It appears clear that H. will be acquitted on a tleast some of the charges.
This is not looking good
http://globalnews.ca/news/2595443/jian-ghomeshi-trial-former-cbc-radio-h...
Former CBC radio star Jian Ghomeshi has been found not guilty of all charges in the high profile sexual assault and overcome resistance by choking trial that heard allegations from three complainants.
There is another trial in June and there also is a 30 day appeal period.
Been watching coverage on CBC. I really wish they'd get rid of that mealy mouthed sychophant defense lawyer they have as an expert commentator. I'd like to hear from some of the protesters, and representatives of support groups for survivors.
Also, to hell with his sister Jila.
The Crown seems to have botched this case.
Open season on women.
Fucking hell.
The Crown should be put on trial. They will harm far more women, and other victims, than a single offender ever could.
