Mr. Justice William Horkins of the Ontario Court of Justice found Jian Ghomeshi not guilty of all counts today in a sexual assault trial that has gained significant notoriety in Canada.
I previously <a href=”http://www.nirwanlawcorp.com/the-jian-ghomeshi-trial-understanding-the-burden-of-proof/” target=”_blank”>wrote about</a> the Ghomeshi case in the context of the tactic employed by his defence counsel, Marie Henein. I argued that in the absence of any physical evidence, and with the complainants’ evidence and credibility being the only incriminating evidence, discrediting the complainants was counsel’s only way to defend her client. It was her obligation to do so, and she apparently satisfied that obligation.
What the verdict also teaches us is that in cases that are entirely dependent on uncorroborated witness testimony, devoid of any physical evidence, credibility is the paramount issue judges must grapple with when determining guilt beyond a reasonable doubt.
Indeed, at para. 131 of his judgment, Justice Horkings writes:
“[t]here is no legal bar to convicting on the uncorroborated evidence of a single witness. However, one of the challenges for the prosecution in this case is that the allegations against Mr. Ghomeshi are supported by nothing in addition to the complainant’s word. There is no other evidence to look to determine the truth. There is no tangible evidence. There is no DNA. There is no “smoking gun”. There is only the sworn evidence of each complainant, standing on its own, to be measured against a very exacting standard of proof. This highlights the importance of the assessment of the credibility and the reliability and the overall quality, of that evidence.”
In the Ghomeshi case, the complainants’ evidence was marred with inconsistencies, inaccuracies and even untruths. One complainant testified to have been assaulted by Mr. Ghomeshi in a car he did not even own at the time of the alleged assault. Another forgot that she had sent a photograph of herself in a bikini to Mr. Ghomeshi after having testified that she had no further contact with him. Another failed to disclose a love letter she wrote to Ghomeshi after the alleged assault to the Crown.
There may not always be corroborative witnesses or physical evidence to assist prosecutors in sexual assault cases. Moreover, the complainants in these cases may not report the incidents forthwith or at all, and their recollections and actions after the incidents may not be clear or logical. That does not mean the assaults did not happen. It does not mean that a crime did not occur. However, the prosecution of sexual assault cases, and what the Ghomeshi case highlights, is that our justice system values the presumption of innocence above all else when adjudicating guilt and requires proof beyond a reasonable doubt to displace that presumption.
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