No one condones sexual violence, harassment, assault or anything of that nature against women, or anyone else. Not the Judges, Courts, or Defence Lawyers. However, the sharp and profound movement that villanizes any participant of the criminal justice system that is involved in the acquittal of an accused who is alleged to have sexually assaulted one or more women was ignited after Marie Heinen’s admirable defence of Jian Ghomeshi. Since then, the internet has been full of ignorant representations of the justice system, and positions that deny the presumption of innocence to anyone charged with a sexual assault. Editorials, reports, blogs and articles drone on and on about the despicable justice system participants that are allegedly complicit in condoning sexual violence.
There is no room in the courtroom, or in our constitution, for a presumption that every complainant of a sexual assault is being truthful. But is that really the case? Are judges and lawyers really sitting around and inventing ways to prevent justice from occurring and allowing sexual assault to be excused? Perhaps the reality is that each case is heard on its merits. And perhaps some complainants who come forward are more than just inconsistent in small portions of their innocence— they are proven to be flat out lying.
Amongst all the noise and chaos that surrounds this movement, there seems to be an unfortunate lack of recognition of cases like the Ontario Court of Appeal’s decision is R. v. McKenzie 2017 ONCA 128— a decision from a Court that is higher than the Court that heard the case of Jian Ghomeshi.
Mr. McKenzie was convicted of sexually assaulting a 19-year-old colleague at a workplace Christmas party. He pulled her into a washroom, groped her, and partially penetrated her anus with his penis. He stopped the assault because someone knocked on the door. Mr. McKenzie was found guilty.
The victim was believed in this case.
The only presumption that must be present, respected, and adhered to is the accused’s presumption of innocence. Mr. McKenzie then appealed his sentence. He was not a citizen of Canada, but a permanent resident. His immigration status could be affected by any criminal convictions. Mr. McKenzie was sentenced to 9 months in prison for his crime, in accordance with the status-quo sentence that the Court of Appeal had previously ruled on. He appealed his sentence on the basis that if he received a sentence of 6 months imprisonment or more, he would lose his right to appeal any removal order, a.k.a. deportation, made by the Canadian government.
The Ontario Court of Appeal dismissed Mr. McKenzie’s appeal, meaning his 9 month jail sentence was left untouched. The Court held that nine months imprisonment was appropriate because the offence was a serious one. The Court held that trial judge made no error in his ruling when considering this sentence. “To have imposed a sentence of less than six months’ imprisonment would have involved reducing the sentence…[in such a way that it] would have resulted in a demonstrably unfit sentence for a “significant sexual assault” involving anal penetration” the Court held.
So even in a case where there are significant arguments to make in favour of a reduced sentence for the accused, the Court took no mercy. So even in a case where there are significant arguments to make in favour of a reduced sentence for the accused, the Court took no mercy. For those who have doubt in the justice system or stand by the problematic notion that any complainant who takes the stand is presumed to be a liar should take note of this judgment and other like judgements as an example of how the system is working.
Are judges and lawyers really sitting around and inventing ways to prevent justice from occurring and allowing sexual assault to be excused? Trials are heard on their merits. The only presumption that must be present, respected, and adhered to is the accused’s presumption of innocence. And starting from that checkpoint, evidence and credibility are assessed and analyzed by the trier of fact. There is no room in the courtroom, or in our constitution, for a presumption that every complainant of a sexual assault is being truthful. However, R. v. McKenzie should serve as a reminder to those outraged at the Ghomeshi verdict to trust in the process, and to give credence to the constitutionally protected right to the presumption of innocence. Should the Crown prove that a sexual assault occurred beyond a reasonable doubt, as they did in McKenzie, then a conviction will be rendered, and at least part of what a victim testified to would be believed. McKenzie is evidence that the system is working. #believeintheprocess.