Jian Ghomeshi decision sparks debate in legal community

In the days following Jian Ghomeshi's acquittal on all charges last Thursday, there has been a growing public debate around how Canada's justice system deals with sexual assault.

• Marie Henein, Jian Ghomeshi's lawyer, denies she has betrayed women

• Jian Ghomeshi trial's not guilty decision triggers outrage, march to police headquarters

• Ghomeshi trial judge praised by lawyers for 'right decision'

Critics have argued the judge's ruling may have revealed significant flaws in the system and while not everyone in the legal community agrees, there is a growing discussion around whether it's time to re-evaluate how sexual assault cases are handled in court.

Ghomeshi was acquitted by an Ontario court judge on four counts of sexual assault and one count of choking in a trial by judge alone. In his ruling, Justice William Horkins scolded the three complainants for their "deceptive testimony," saying that there were serious deficiencies in their evidence.

The associate dean of the faculty of law at the University of Calgary, Alice Woolley, says while the decision in the Ghomeshi trial was not surprising, "the circumstances were such that it was a difficult case to prosecute."

"Saying it's not surprising is not necessarily the same as saying that it was fair or just," Woolley said. 

"I think the thing that has to be understood is it's important not just that the system be structured in the right way, but that everybody in the system do what they're supposed to do to make sure that it functions as it ought to." 

In an exclusive interview Tuesday with the CBC's chief correspondent Peter Mansbridge, Marie Henein, the lawyer who represented Ghomeshi, insisted that justice was served in the former CBC Radio host's trial. 

"Obviously I think it is the correct result," Henein says. "It was a principled result in a case where people were agitating, I think perhaps not being as measured as we would like."

Woolley says one unique aspect of sexual assault cases that can make them difficult to prosecute is that many cases come down to alleged victims' testimonies. 

"So often the evidence comes down to the complainants' evidence versus the accused's story and the ability to discharge the burden of proof is based only on that," Woolley says. 

"The other thing is that these cases are defended very zealously as they ought to be, but when you look at the research that's been done, you see that sometimes complainants are cross-examined in ways that the law does not intend for them to be and they're not necessarily given the protections that they need to be by either the Crown Counsel or by the court itself."​

Catching up with the law 

Woolley says that in many ways, it is those who play critical roles within the justice system that need to "catch up with the law" when it comes to handling sexual assault cases. 

"You need to have judges who are well-educated about how complainants will respond to experiencing sexual assault," Woolley says. "That it's very common for them to contact the person afterwards, especially in a system, a situation of intimate partner violence or rape."

 "The judges need to be well-educated. You need to have crown prosecutors who understand what it is like to be a complainant in the situation," Woolley says.

On-campus discussion

Students at York University's Osgoode Hall Law School in Toronto say the case has also generated discussion on campus. 

"All the student colleagues I've discussed the case with have been following more for the legal principles, rather than the celebrity," says third-year law student Nadia Klein.

Klein said she agrees with the principles behind Henein's belief that sexual assault cases shouldn't be treated differently from other crimes.

"There seems to be public cry for at least a reduction, if not to completely do away with the presumption of innocence with accused in sexual assault cases and that seems preposterous," Klein said. 

First-year law student Jasmine Godfrey says she worries that the case will discourage sexual assault victims from coming forward. 

"I think that this case will unfortunately have a negative bearing on future victims of sexual assault in coming forward, but I don't think that should influence the standard of beyond reasonable doubt," Godfrey says. 

Presumption of innocence 

In his interview with Henein, Mansbridge said some argue the system is not fair, since the accused is under no obligation to testify, meaning the defendant's credibility isn't required to face the same scrutiny as the complainants. 

But Henein countered that the defendant's right not to take the witness box is integral to the presumption of innocence in requiring that the state to prove its case. 

Henein said a sexual assault case shouldn't be treated any differently than any other crime, "in the sense that the presumption of innocence is set aside or reasonable doubt is thrown out the window." ​

Woolley said it is difficult to "impose perfection or the perfection of outcomes on an imperfect system."

"One of the things to understand about the legal system is that it's a construction of rules that tries to deal with a messy reality of humanity," Woolley said. "It tries to do its best in response to that messy reality, but it generally does a fairly imperfect job."

Politicians weigh in

Politicians such as federal New Democratic Party Leader Tom Mulcair have also been weighing in on the debate, arguing that the job the system is doing just isn't good enough.

Mulcair, who attracted criticism from Henein on Tuesday's interview for tweeting out, "#IBelieveSurvivors" said in a statement Wednesday, "the problem isn't lawyers doing their jobs. That's a good thing. The issue is that the criminal justice system, as we have seen, has structural problems when it comes to handling cases involving sexual assault."

A lawyer himself, Mulcair said in his experience working sexual abuse complaints, "one of the biggest obstacles to justice that I saw was women not being believed when they came forward."

Other politicians also took to Twitter to tweet out #IBelieveSurvivors on the day of the ruling, including Ontario NDP Leader Andrea Horwath and Ontario Progressive Conservative MPP Lisa MacLeod.