Glen Canning, reflecting on the events over the last few weeks surrounding sexual assaults committed by Jian Gomeshi, wrote a deeply critical article about how our criminal legal system fails the victims of domestic violence. He pointed to the under-reporting of domestic violence and the dissatisfaction of victims with the criminal process as evidence that our criminal legal system is broken.
In law school, I wrote a term paper and took a specific class about how the criminal process deals with sexual assault. I see a legal system that is struggling to cope with one of the hardest and most complicated types of crimes out there. It’s far from perfect, but I hope, in this article, to point out a few things that will show how our system is really trying to be just, even though finding that justice is a next-to-impossible balancing act.
Here are some of my thoughts
- The right to be presumed innocent until proven guilty is a crucial concept of our legal system, but you can believe and express whatever you want
The Charter guarantees the right to be presumed innocent until proven guilty in the criminal process, but it does not dictate that the public must adhere to this same presumption. You are entitled to think and express your feelings and opinions, and as we all cope with what is being revealed, it is crucial that we all, collectively, do just that. Let’s not confuse a legal right with some sort of personal or societal obligation.
- The criminal process must base its decisions on evidence, not public opinion
The right to be presumed innocent until proven guilty is another way of saying that people will only be condemned for committing crimes if there is evidence against them. It puts the police, the crown and the state to the obligation to provide evidence confirming that a criminal act has been committed.
You start your article by saying “due process is a concept I wish I could believe in”. I don’t see any alternative to due process which I can believe in.
Are you suggesting that we should proceed with criminal convictions based on public outcry without the need to go through the long process of proving fact based on evidence? Where would this leave all the other victims of domestic violence who don’t have the benefit of that public outcry?
I understand that what has been revealed about Jian Gomeshi is horrific and ugly, but we need consistency and due process to treat other similar or worse cases equally, regardless of how much press they get.
- Police officers and crown prosecutors take domestic violence very seriously
Across our province and country, police officers and crown prosecutors have “no drop” domestic violence policies which force the police to lay charges following allegations of domestic violence and crown prosecutors to prosecute them. While later in the criminal process, victims are exposed to a wide array of horrific questioning, it is simply not true that a victim who reports domestic violence to a police officer will be brushed aside. A police officer who is dismissive of a complaint of sexual assault is disobeying his or her own policies.
Perhaps 40 years ago complaints of domestic violence were not taken seriously and victims were left to increasing violence and/or death at the hands of their abusers, but we have come a long way since then.
- Under-reporting is caused by many factors, and the feeling that the criminal process would be a nightmare is just one of them
Victims do not report domestic violence for many reasons. Some share a family and a house with their abuser and worry about how they will sustain themselves if they open up. Some waiver between leaving and staying with their partner. Some can hardly admit the reality to themselves, let alone their friends or police officers. While going through the criminal process may be a factor, it is only one of many.
- I don’t believe that the experience of all victims in the criminal process is a nightmare
Reporting violence is scary because you can never be certain what the experience and the outcomes will be like. I believe that victim experiences with the criminal process vary greatly. It depends on the police officer and the crown prosecutor that you come into contact with. It depends if you happen to be in a region which has a specialized domestic violence court. It depends on the justices and the judges who are in front of you on particular days. It depends on if the accused pleads guilty or goes to trial.
- The criminal process is slow, but it takes things seriously
I understand your frustration with how long it has taken for victims to come forward, and how long the criminal process will inevitably take. But do not equate this with indifference. The criminal process takes time, but it also takes charges very seriously. Considering that three victims have already come forward to the police, I have little doubt that Jian Gomeshi will be brought to justice.
This has been a challenging, frustrating and difficult time for all of us. Coming face to face with Jian Gomeshi’s actions and the prevalence and under-reporting of rape in our culture more generally is not easy. But let’s not blame easy targets like the criminal process for something that has many interrelated causes. This is a time to reflect on what is wrong, not just with our criminal process, but with society more generally, and I hope that this post has helped promote a balanced and measured response to something so very ugly.