Maintaining Fairness Paramount in Sex Assault Trials

Those in the justice system should be as vigilant about ensuring there's no political interference to derail the court process as they are about supporting sexual assault victims bringing complaints forward, Toronto criminal lawyer Melody Izadi tells AdvocateDaily.com.

“We all support victims of violence having a voice,” says Izadi, an associate with Caramanna, Friedberg LLP. “But the #MeToo movement has already sparked pre-emptory challenges (questioning potential juror’s impartiality) during jury selection.

“There’s sometimes an assumption that when a victim comes to court they must be believed. But that’s what the trial is for — to test that.”

Critics who cite the decision in the 2016 high-profile trial of former CBC host Jian Ghomeshi as an example of what is wrong with the justice system missed the point, she says. Most probably didn’t read the judgment and are even less likely to understand the court process that led to doubt about complainants’ testimony and an acquittal.

The subsequent personal attacks on social media against defence counsel were unjust, Izadi adds.

“As defence counsel, we don’t have to believe whether our client is guilty or innocent. Our job to do the best job possible to ensure a fair trial,” she says. “If that was your husband, brother or dad accused, you’d want the same result if that was the testimony.”

Izadi says there are those who seem to demand that a complainant’s testimony go unchallenged while an accused is presumed guilty. That runs contrary to the central premise of the justice system — innocent until proven guilty, she adds.

“You have to have an open mind as to what evidence is brought out in cross-examination,” Izadi says. “It’s not as though convictions aren’t happening. Complainants are being believed.”

However, it’s the cases where charges are dismissed that get the headlines and condemnation on social media that follows, she says.

Pressure from activists has also prompted discussion around changes to the Criminal Code that would require defence counsel to share proposed evidence to counter sexual assault charges. Izadi says that’s an issue that goes to the heart of the court process.

“It would make us show our poker hand,” she says. “So any evidence brought to light in the Ghomeshi trial would potentially have to be disclosed before trial. It removes a very powerful tool. The #MeToo movement has pushed this idea that the system is unfair to complainants, but it’s completely butting heads with the accused’s right to defend themselves.”

With prior knowledge of the defence case, the Crown would be able to prepare witnesses accordingly, potentially robbing the defence of that “moment of truth” during cross-examination, Izadi says.

Such changes would undoubtedly be challenged all the way to the Supreme Court, she adds.

“There’s nothing wrong with bringing emotion into a courtroom. It is an emotional process, but to create legislation as an emotional reaction to a particular movement is problematic.”