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After Ghomeshi case, is more legal advice really what victims need?

On behalf of Edelson Clifford D'Angelo Friedman LLP posted in Criminal Defense on March 25, 2016.

Earlier this month, the Ontario government launched the Independent Legal Advice for Sexual Assault Survivors Pilot Program. The program pays lawyers to provide as many as four hours of free legal advice to sex assault complainants to help them “make informed decisions about their next steps.”

The government will pay these lawyers $136/hour, which, as an aside, is a higher hourly rate than the publicly funded legal aid program would pay a lawyer with nine years’ experience to defend an indigent accused person facing years in prison. But I digress.

The irony of this recent announcement is quite pronounced, particularly when one reads the detailed and thoughtful decision of Justice William Horkins in acquitting former CBC broadcaster Jian Ghomeshi.

When one sets aside the frenzied social media lynch mob and the intensity surrounding the trial, no objective observer was surprised by the outcome – not guilty on all charges.

Many in the media and the academy, have commented on how unfair, difficult and opaque the criminal process can be for sexual assault complainants. The Independent Legal Advice project was launched in response to these concerns.

In the Ghomeshi decision, the trial judge categorically stated that he was unable to accept the evidence of any of the three alleged victims. He found them each to be not credible and unreliable. In fact, he went so far as to remark that the complainants had betrayed their oath to testify honestly.

Of course, there is no doubt that these women would have fared far better had they had access to the type of program recently launched by the Ontario government.

Surely, with the guidance and advice of legal counsel, the complainants would have testified in a candid and forthright manner — and their evidence would not have been littered with contradictions, confabulations and, in some cases, outright perjury.

Or not.

As it turns out, each of the complainants in the Ghomeshi trial was represented by counsel. In fact, two of them were, at one point, advised by the same lawyer, a point Justice Horkins commented on in describing their strong “team bond” and their shared goal of bringing down Mr. Ghomeshi.

Nonetheless, they all received independent legal advice. And, without exception, their evidence was deemed self-serving, inconsistent and left the judge with “no hesitation” in finding Mr. Ghomeshi not guilty.

So what does the government hope to accomplish with this new initiative and the millions of dollars in funding behind it?

Maybe, independent legal advice can assist sexual assault complainants in “navigating” the criminal justice system, and particularly, their role in the courtroom.

This possibility was considered, and rejected by Justice Horkins in his reasons.

When complainant S.D. stated that she (despite, by the way, her own legal representation) did not know how to “navigate” the criminal system, the trial judge pulled no punches in evincing his contempt for this claim: “‘Navigating’ this sort of proceeding is really quite simple: Tell the truth, the whole truth and nothing but the truth.”

And that is really the heart of the matter. Ghomeshi was acquitted, not because of stereotypical assumptions about sex assault victims or outdated “rape myths”, but because all three complainants seemed uniformly incapable of simply telling the truth.

And when the dust settles on this decision, that is what this case stands for. When you lie repeatedly — to the police, to the Crown and to the court — your evidence cannot be the basis for a conviction.

We demand proof “beyond a reasonable doubt” and that requires witnesses who are honest and forthright. Because while the complainant is never on trial, the Crown’s case always is.

And no amount of independent legal advice can make up for witnesses who cannot stay faithful to their oath to tell the truth.

This article was originally published at

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