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David Butt

David Butt

David Butt

Ghomeshi: How a media pile-on could turn into a criminal prosecution Add to ...

David Butt is a Toronto-based criminal lawyer

If you roll a snowball down a hill, it rapidly gains speed and heft. The Jian Ghomeshi snowball, with the full weight of the media behind it, now has enough of both to ask if criminal prosecution is next.

Top of mind must always be the presumption of innocence, rightly called the golden thread running through the entire tapestry of our criminal justice system. Make no mistake: right now, Mr. Ghomeshi is legally innocent. He will remain unreservedly so unless a criminal court issues a guilty verdict. And a trial will never happen unless complainants start talking to police, not just reporters.

To sustain a prosecution, police must gather proper evidence that provides a reasonable prospect of conviction. “Proper” evidence means a lot of things, but two deserve emphasis: First, our criminal justice system recognizes that a person’s fame, social status, or unique talents have absolutely no bearing on the decision to prosecute or not, because we are all equal before the law regardless of our accomplishments. But it wasn’t always that way. Up until quite recently, so called pillars of the community informally got a pass on sex crimes, and we had to learn the hard way how terrible it is to turn a blind eye to sexual or physical abuse committed by the powerful or exalted. Our history is haunted by the anguished cries of children whose abuse was ignored because the perpetrators were, for example, respected religious leaders in residential schools.

Second, we all routinely rely on media outlets and underlying journalistic ethics to understand the world around us. But courts do not. Which means that even the most watertight, ethically pure investigative journalism is not evidence for a criminal court. Instead, courts rely on police investigations, challenged by vigorous defence cross-examination.

That is not to diminish the crucial role the media plays in the criminal justice process. I have written how our justice system fails victims of sexual violence, the stark proof being the abysmal rates of the reporting of sexual offences. Most victims, shamed and humiliated by their victimization, which usually occurs in private, simply don’t see the criminal justice system meeting their needs. They see instead protracted delay, re-victimization, and ultimately no validation of their suffering. Coming forward with allegations of sexual assault is often too heavy a lift for a solitary victim.

Enter the media. Stories about alleged sexual or physical violence can teach victims they are not suffering in the isolation they imagined. There is strength in numbers, and media attention can build that strength, which empowers victims to come forward to police. Stories that empower the reporting to police of sexual or physical violence emphatically do not undermine the presumption of innocence. The media can play a catalytic role in bringing cases to court that should have been there in the first place. Once there, it remains incumbent upon the courts to treat accused persons with the scrupulous fairness the Charter of Rights demands.

But what if it takes years for cases to come forward? Delay in reporting sexual violence is, for many reasons, commonplace. Thankfully, delayed reporting is not an impediment to prosecution, apart from problems around evidence disappearing over time. Minor cases have a six month limitation period, but serious cases have none. And most violent crimes have dual status: they can be treated as either minor or serious depending on the circumstances. So while immediate reporting of crime is always preferable, prosecutors do have tools to accommodate natural delays in reporting that are inherently symptomatic of sexual victimization.

When complainants come forward in bunches criminal courts are comfortable with what lawyers call “similar act evidence”. When multiple complainants all allege mistreatment at the hands of a single accused person, their individual cases can be tried together, so that each complainant’s case is not considered in isolation. Rather, juries can look at the entire pattern of conduct described by the multiple complainants in deciding if any one or more of those complaints is proven beyond a reasonable doubt. Similar act evidence is really just the legal system’s way of saying the whole is greater than the sum of its parts.

It is possible, however, to abuse the similar-act process. Fifty medieval villagers make spurious allegations of witchcraft, fifty more jump on the bandwagon when the story gets traction, and then an innocent elderly woman burns at the stake. So investigators and courts screen such evidence to prevent abuse. Each individual incident must be internally credible, independently generated, and link logically to the big picture. Or as lawyers say, the probative value of the similar act evidence must outweigh its prejudicial effect.

Police and prosecutors must consider all of this as the snowball rolls.

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