Public confidence in the ability of our criminal justice system to adequately deal with charges of sexual assault is incredibly strained in our society. This has been the case for some time, but the recent acquittal of former CBC host Jian Ghomeshi confirmed many people’s worst impressions about how we as a society deal with such cases.
Three accusers were each subjected to withering cross examinations by a skilled defense attorney. Most of that cross examination focused on issues that were arguably peripheral to what is supposed to be the central question in the case - whether or not any of them had actually consented to Ghomeshi’s actions.
Meanwhile, Ghomeshi sat silently throughout the proceeding as is his right. At the end of the day the judge chose to find some doubt about the truthfulness about the allegations of each of the three accusers despite their allegations going unchallenged by Ghomeshi himself.
Opinions differed widely following the acquittal. For some the system functioned as it should by imposing a very high burden on accusers to be forthright and honest.
For others the non-disclosure, inconsistencies, untruths, and post-assault contact with the accused were completely understandable for someone who had suffered a traumatic sexual assault. Moreover, the court’s disbelief of their allegations in the face of what many saw as Ghomeshi’s very obvious guilt were symptomatic of a system that is stacked in favour of acquittal.
I was not in the courtroom throughout the proceeding and only had the benefit of the court’s written judgment along with media accounts. I don’t think it is my place to second guess the court’s assessment of credibility.
But I do have some doubts about some of the legal principles that have evolved over time in our country which the judge that sat in judgment over Ghomeshi was obliged to abide by.
In particular I have doubts about the merits of the Supreme Court of Canada’s prohibition on the use of so called “adverse inferences” against an accused that chooses to remain silent and opts not to contradict the Crown’s evidence. Four of the Supreme Court justices who were involved in that decision had similar doubts.
As most already know, the Charter of Rights guarantees that each “person charged with an offence has the right… not to be compelled to be a witness in proceedings against that person in respect of the offence.”
The ability of an accused to sit silent - offering only a plea of “not guilty” in response to the charges - while the complainant’s credibility is picked apart piece by piece is a point of considerable frustration for victim’s advocates, particularly in sexual assault trials.
Yet in 1997 the Supreme Court of Canada took the right not to incriminate a step further - and I would argue one step too far. In the landmark case of R. v. Noble, the court found that not only did an accused have a right not to testify but that no “adverse inference” could be drawn from their decision not to.
An “adverse inference,” in a nutshell, is a conclusion drawn by a court when a party had an opportunity to bring evidence on a particular point but chooses not to. If some sort of assertion is made by a witness and no evidence is called to rebut that assertion (despite the availability of such evidence) it is inferred by the court that it is true.
In the civil law context adverse inferences are used all the time, but in criminal law they are more controversial. Some argue - and the majority agreed in the Noble case - that drawing adverse inferences against an accused exercising their right to remain silent offends that right. What is the point of not having to testify if exercising it is used against you, they say?
But Noble was a split decision of the court, and four of the nine justices disagreed with the majority’s conclusion.
One dissenting judge wrote “I find nothing infirm in appropriate circumstances in drawing inferences from the silence of the accused ... Once the Crown has made out its case such that a conviction would be reasonable and there is a logical expectation that the accused adduce evidence in response, all judicial decision-makers may draw inferences of guilt based on the silence of the accused.”
Another dissenting judge went on to add, “to say that an inference has been drawn from the accused’s failure to testify is only to say that the Crown’s evidence stands unchallenged. This does not violate the accused’s right to silence or presumption of innocence.”
I’m inclined to agree with the court’s dissenters. A judge ought to be allowed to say, “Look I know that there are problems with these witnesses, but each of them says you assaulted them, and you haven’t really offered me anything in response to that, so what am I to make of that?”
An accused need not help the Crown make its case, but when the case hangs on the credibility of prosecution witnesses - as it often does particularly in sexual assault cases - it seems only logical that the lack of any meaningful rebuttal might also factor into the court’s consideration.
While the judge in the Ghomeshi case specifically mentioned his inability to draw any adverse inferences from the accused’s silence, it seems doubtful that a reversal of the Noble decision alone would have resulted in a conviction. It wouldn’t have prevented the type of attack on the credibility and reliability of his accusers’ evidence that we saw unfold in the media either.
But it would have helped. I see nothing offensive with the notion that evidence, even from problematic witnesses, ought to generally be believed when it goes unchallenged. And I don’t think that allowing a judge to follow such a logical train of thought somehow puts the basic underpinnings of our criminal justice system in any danger.
Kyle Carruthers is a born-and-raised Yukoner who lives and practises law in Whitehorse.