Eliminating the Presumption of Innocence one Reform at a Time

I just read this article which suggests ways courts could “better handle sexual assault cases,” and with apologies to Elliotte Friedman, here are my 17 thoughts.

  1. Criminal law deals with society’s denunciation of individual conduct. Crimes are against the State not just an individual. The State has enormous power and if the State wants to convict somebody and take away their freedom by locking them up in a cage we rightly demand that the process not be easy and have in place safeguards to guard against convicting the innocent.
  2. What happens when a complainant in a sexual assault matter or domestic violence case changes her mind? Does she simply tell her lawyer to tell the Crown to drop the charges? I suspect the Crown may take a different view and still proceed with the matter and force the complainant to testify.
  3. Who is going to pay for these court appointed lawyers? Will the money come from Legal Aid? A new entity? Will the lawyers get paid at Legal Aid rates? Same rate as the Crown?
  4. What will the relationship between the Crown and the appointed lawyer be? Do they work on the case together, like some super dream team? Does the appointed lawyer have standing to cross-examine witnesses at trial including the accused should he testify?
  5. Which interests prevail here? The complainant’s desire to get a conviction or the Crown’s role to see that justice is done (always remembering that “justice” does not equal “conviction”)
  6. What do the police think about having a lawyer present during their questioning of a witness? Can the lawyer ask questions? Will that lawyer be a witness at trial if the defence brings up suggestions of irregularities in the taking of that statement?
  7. Why limit this to sexual assault complainants? Why can’t any complainant/victim be provided a court appointed lawyer to represent their interests. What about the man who gets beat up by a gang? Does he get a lawyer? What about the parents who had their child killed by a drunk driver? Do they get a lawyer? What about the inmate at prison who alleges that guards beat him up? Does he get a lawyer?
  8. What happens to the Victim Support workers? Do we still need them?
  9. Realizing that a lawyer-client relationship has been established with this court appointed lawyer, does the Crown have to seek permission from the lawyer to speak to the complainant in preparation for trial?
  10. What if the court appointed lawyer isn’t happy with the police investigation and hires his own investigators and experts, are the fruits of that investigation disclosable to the defence? If not, why not?
  11. Civil cases deal with disputes between individuals. So now the State with all it’s resources will advocate for one individual? Again why just limit this to sexual assault, why not murder, other types of assault, frauds, drunk driving etc?
  12. Does the State get a percentage of any awards in a civil case to offset the cost of these cases?
  13. How is it buying into a “myth” when confronting a complainant of the possibility that they’re making up their story? The accused is presumed innocent at all stages until and unless he is convicted. If the accused denies that he sexually assaulted the complainant why is this allowing myths into the courtroom? Lawyers (both defence and crown) routinely confront witnesses with the suggestion that they’re making their story up. Do we also have to stop suggesting to police officers that they’re wrong or making up their testimony because we don’t want to buy into the “dirty lying cop myth”?
  14. This unidentified crown attorney says that, “it should be easy to prosecute these case.” Should we take that approach with every offence in the Criminal Code? They should all be easy to prosecute? Should we have a conviction rate of 99%? Is that what we want? A complainant or police officer makes an allegation and we just have show trials which culminate in convictions?
  15. All witnesses, whether police, experts or anyone else for that matter will tell you that being cross-examined isn’t fun, and that’s the way it should be. Having your story questioned in detail is an essential part of our trial process. Moreover, the idea that cross-examinations are limitless and defence can ask any old question that pops into their head is absurd. In every courtroom there’s a judge and crown. They don’t just sit there like potted plants while defence counsel takes a free run at witnesses.
  16. Cross-examination has been descried as “the greatest legal engine ever invented for the discovery of truth.” We ought not to just easily give up this feature without a fight.

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