The recent acquittal of Jian Ghomesi on a number of sexual assault counts against multiple complainants has sparked headlines around the country. The fallout of the acquittals has left many expressing disappointment with the justice system, and expressing anger over victim rights. While the trial gained national notoriety due to the accused being such a well-known celebrity, the truth is that the allegations and the defence’s tactics are ones seen in the Ontario Court of Justice on a daily basis.
In most sexual assault cases, there is are no independent witnesses, there are no photographs or video, and there is often no DNA. Most cases come down to a “he said, she said” situation. The complainant testifies, and is cross-examined, and sometimes the accused testifies, and is cross-examined. The Judge is often left with two stories. His or her job is not to choose which story s/he finds the most believable, but rather, in light of all the evidence, to determine if there is there proof beyond a reasonable doubt. The truth is that while a complainant may be reliable, in that what they saying is honest in their mind, it may lack credibility, in that it may not be believable enough to convince a trier of fact beyond a reasonable doubt that a crime occurred. A witness can be reliable, but not credible. In the Ghomeshi trial, the Judge found that the three complainants lacked in both reliability and credibility. While he did not call them liars, nor did he find that the acts Ghomeshi was accused of did not happen, he found that he could not be convinced beyond a reasonable doubt that the acts occurred, because of the manner in which the witnesses testified.
The Ghomeshi trial highlights the importance of having a skilled defence lawyer in cases of sexual assault. Since these cases often turn on the testimony of the complainant, and the accused if s/he testifies, the effectiveness of the cross-examination of the complainant is often the most critical part of the case.