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Culture Aug 28, 2019 7:49 AM EST

New “Ghomeshi Rules” will turn our courts into a circus

Basically, the new legislation is a form of virtue signalling which asks our judges to engage in inappropriate and dangerous social activism.

New “Ghomeshi Rules” will turn our courts into a circus
Diana Davison Montreal, QC

This article was published more than 1 year ago, information might not be up to date.

As Canadian judges struggle with the new so-called “Ghomeshi Rules” in accusations of sexual assault, many innocent men may go to prison.

Former CBC radio host Jian Ghomeshi was acquitted of sexual assault in a sensational, high profile trial back in 2016. Each of the complainants were deemed by Judge Horkins in that case to have “breached her oath to tell the truth” and even the media, who were mostly salivating for a conviction, had to admit that Ghomeshi should not have been convicted.

Nevertheless, protests were held and demands were made from the public to improve conviction rates in sexual assault trials.

These new rules of evidence in sexual assault cases were introduced by Jody Wilson-Raybould, during her stint as Justin Trudeau’s Minister of Justice, and passed unanimously by parliament, becoming law in December, 2018. Though no reasonable person has questioned Jian Ghomeshi’s acquittal after the evidence came out in trial, we are being asked to approve changes that would prevent a similar outcome.

A recent decision in Saskatchewan threw out a portion of the new legislation that demands an accused person reveal all non-sexual evidence to a witness prior to their testimony in court. In that decision, Judge Henning ruled that revealing defence evidence and strategy to complainants prior to their witness testimony would negate the value of cross-examination.

This case was different from a recent ruling in Ontario that declared the new rules constitutional. In the Ontario case, the evidence being examined was sexual in nature and more in line with the rules of evidence prior to Bill C-51 passing. The Saskatchewan case specifically addressed the new regulation in 278.92(1) which presumes any evidence “relating to a complainant” is not admissible unless first approved by a hearing.

This is overly broad and requires judges to vet every communication of any nature, sexual or otherwise, before the defence can use the communications in court.

There is no public interest in helping liars lie better in court.

While there is a legitimate concern regarding people who must testify in public courts about intimate experiences, so that real victims of sexual assault can more easily obtain justice, we cannot reverse the onus of proof in criminal courts by allowing for convictions based on nothing other than testimony from a complainant whilst also preventing that complainant from being effectively challenged in court.

In his verdict, Saskatchewan’s Judge Henning states “The prior processes have not compromised the integrity of the trial process and have still provided powerful protections to a complainant in the trial of a sexual assault complaint.” The ruling, which is a provincial court decision and thus not binding, rejected the disclosure of non-sexual evidence in advance largely relying on the reasons why witnesses are always excluded from court until they’ve completed their testimony.

The defence has referred […] to the long-standing practice of excluding witnesses from proceedings until after their testimony is given to prevent modification of evidence-based upon what they might hear from other witnesses. That this practice is desirable for the purpose of maintaining the integrity of the trial process in the search for truth has been axiomatic up to the present time.

Basically, the new legislation is a form of virtue signalling which asks our judges to engage in inappropriate and dangerous social activism.

The public has been misled regarding what these new rules of evidence require. Most people think that the criminal code simply bolsters the rejection of “prior sexual history” being misused in court to imply a woman is more likely to have consented or less worthy of belief because of previous sexual encounters: otherwise referred to as “the twin myths.” That is not the case.

The legislation now requires that a defendant turn over every text message, email, or other non-sexual evidence prior to trial so that a complainant can’t be surprised by cross-examination on any communications she may have forgotten about – or hoped the defendant didn’t still have in his possession.

No one testifying in a criminal trial expects a picnic.

These new rules are reactionary, simply seeking more convictions at the expense of fair hearings, and they don’t do a single thing to take away from the embarrassment that a complainant may experience. Now that complainants can attend advance evidence hearings and have legal counsel to block the evidence, it means that they will personally hear every bit of evidence the accused wants to bring to trial – even if the judge decides it is not admissible. Prior to these new rules, the complainant would be spared this encounter.

It concerns me that people claiming to advocate for victims of sexual assault are losing sight of what we should assume is their real goal: helping actual victims. We can’t assess court outcomes and determine who the real victims are by undermining fair trials and there is a real risk that complainants will find the new process more difficult than it was in the past.

The rush to implement new rules that seek to “improve” conviction rates has turned our courts into a circus. In one decision last May, Ontario’s Judge Kane had to declare that not only was the application for evidence approval issued under the wrong section of the criminal code, the judge didn’t know what the details of the accusation were, nor the details of the evidence being vetted, nor the relevance, nor whether the accused was even going to try to use the evidence in court.

Crown prosecutors have denied that these new rules, which are throwing our courts into chaos, are connected to the acquittal of Jian Ghomeshi. They deny it because everyone knows that Jian Ghomeshi was properly acquitted and it would be disgraceful to admit that they seek to alter rules of evidence which allowed an innocent man to prove his case.

And yet now, by virtue of one man being found not guilty in a court of law, many other innocent men may go to prison as a result.

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