The criminal trial of former CBC radio host Jian Ghomeshi for charges of sexual assault and choking commenced in Toronto today. Needless to say, the case has attracted considerable media attention in Canada, and many commentators seem somewhat perplexed, off-put and even dismayed at the scope and tenor of defence counsel’s cross examination of the first complainant.

Ghomeshi’s counsel is well known and respected criminal lawyer, Marie Henein. Today, Ms. Henein began her cross of the Crown’s first witness with questions intended to impugn her recollection and credibility. Questions such as: “you reported the assault to the media before reporting it to the the police, correct?” and “you went on a second date with Jian following the alleged assault, correct?”

Observers on social media and elsewhere seem surprised and disheartened that a purported victim of sexual crime is being re-victimized and both explicitly and implicitly, being called a liar and fabricator while on the stand.

Some even express anger and frustration with Ms. Henein and her “chosen” method of attack in this regard.

However, if anger or frustration is warranted at all, perhaps it is better directed at the criminal trial process itself rather than at defence counsel.

The criminal trial is concerned with determining whether a trier of fact (either a judge or jury) can be satisfied beyond a reasonable doubt of an accused’s guilt as charged. The beyond a reasonable doubt standard is intended to avoid wrongful convictions and is related to the fundamental tenet of the criminal justice system: the presumption of innocence.

The Supreme Court of Canada has defined a “reasonable doubt” as more than “an imaginary or frivolous doubt” and a doubt that is “logically derived from the evidence or absence of evidence” (R. v. Lifchus 1997 CanLII 319 (SCC)). It falls closer to absolute certainty than towards proof on a balance of probabilities (R. v. Starr, 2000 SCC 40).

The defence, on the other hand, is required to do nothing. It is not required to call any evidence whatsoever. The burden remains on the Crown to prove guilt beyond a reasonable doubt.

However, a prudent defence lawyer would do all that was within his/her power raise a reasonable doubt. Perhaps the accused had an alibi, or there was a video showing that the events did not transpire as alleged, or perhaps DNA or other evidence serves to raise a reasonable doubt that the accused is guilty.

But what happens, such as in the Ghomeshi case, where there is no alibi, or video, or DNA evidence to exonerate the accused? How does the defence raise a reasonable doubt in these circumstances?

In such a case, the defence is relegated to raising a doubt by challenging the complainant’s recollection and credibility. There really is no other feasible way to mount a defence. Ms. Henein has not chosen this method of attack, so much as it was the only avenue available to her.

This is perhaps a failing on the part of our justice system whereby victims of sexual assault crimes who have the right to redemption and justice vis a vis the criminal justice system are confronted with the rights of accuseds to be presumed innocent and have the cases against them proven beyond a reasonable doubt. The process entails carefully parsing out evidence including the complainant’s testimony, character and motivations with a view to determining whether guilt can be proven. The product of that process is called justice, either for the Crown (and thereby the complainants and society) or the accused.
Perhaps in the case of sexual assault cases, the criminal trial is a blunt instrument, ill suited to balance the rights of victims to be heard without re-victimization with the rights of accuseds to be presumed innocent unless proven guilty beyond a reasonable doubt. One thing is for sure, it’s the only system we’ve got, and defence counsel ought not to be blamed for doing their best for their client within the confines of that system.