It's time to change sexual assault trials in the criminal justice system, says retired judge

A former Ontario Superior Court trial judge says it's time to make some changes to the criminal justice system in Canada.

Marie Corbett, who lives in Avondale, said the trial and subsequent protests in the sexual assault trial for Const. Doug Snelgrove show democracy in action.

This is a time for dramatic change.- Marie Corbett

But Corbett said it also shows there's a serious level of mistrust in the Canadian criminal justice system, especially when it comes to sexual assault trials.

"Yes, people should be angry," said Corbett.

Protesters gathered outside Royal Newfoundland Constabulary headquarters in St. John's on Monday, upset with Snelgrove's not guilty verdict and pushing for action against the suspended officer.

The trial against Snelgrove showcased the difficulties when it comes to a sexual assault trial, Corbett said, and the burden of proof on the complainant.

"The problem is that, in this particular case, the complainant testified … that she didn't know if she consented or not. And the prosecution has to prove that this complainant did not consent, beyond a reasonable doubt," she said.

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"Even though the criminal law does say that it is not valid consent if the complainant is incapable of consenting, or indeed if the accused engages in activity or abuses a position of power or authority or trust. And that is the problem between the law in books, and the law in action."

'Brutal' cross-examinations

Corbett said a particular point of contention is the line of questioning put to the alleged victim in these kind of trials.

"Cross-examination is brutal, absolutely brutal, and it's related to all the what we call 'rape myths,'" she told CBC's Here & Now.

"And laws have been changed to try and do something about this, but in fact cross-examination is still enormously wide and it's still very difficult to withstand its brutality."

While the courts hold someone in a position of authority — such as a police officer — to a higher standard, the challenge remains in trying to prove a negative: that someone didn't consent.

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"It seems to me that it's time to rethink the law and perhaps change it," Corbett said.

Corbett said the burden of proof should be shifted, especially for certain circumstances, including:

• If someone is incapable of consenting, through alcohol, drugs, or an intellectual or physical handicap - making the person vulnerable.
• If an accused person is in a position of authority.
• If the accused and the complainant do not know each other.

Corbett believes "one-thousand per cent" that sexual assault cases involving adults can be handled differently.

"There's been an outcry in provinces all across the country. This is not a local issue, this is a time for dramatic change."