There’s an old saying: “Not only must Justice be done; it must also be seen to be done.” Today I believe that,  while the justice system in Canada may have functioned well by its own terms, it has failed the people it is supposed to serve – and in particular, it has failed victims of sexual assault.

The case of R. v. Jian Ghomeshi is a prominent case not just because of who was the accused, but because of the crimes of which he was accused. Violence against women is a profoundly disturbing and emotional issue, despite its prevalence. Something like one in three woman have experienced sexualized violence (and that’s a conservative estimate).  The best estimate is that only 8% of sexual assault cases are reported to the police. Only about 30% of the reported cases report in charges, and only half of those charged received convictions; if you do the math, that means that only 1.2% of sexual assaults that are reported result in convictions.

There are many reasons why victims do not report sexual assaults.  Given the treatment of the three witnesses in the Ghomeshi trial, it is not surprising why. Any person called upon to testify will be ripped apart by a good defense lawyer, and Jian Ghomeshi had one of the best. Sexual assault is traumatic, and if the victim is emotionally involved with the attacker or in a disproportionate power relationship then that victim will not necessarily act in a way that appears rational, consistent, or in their best interests. The legal system treats this as a means to discredit the witness – the witness or victim is accused of lying, or being confused or contradictory, or of trying to manipulate the system – no allowances are made. In many ways our common law system embodies the biases of male reason, the “Man of Reason” as described by Genevieve Lloyd in her 1984 book.

Ghomeshi was not found innocent – the courts rarely do that.  As the judge said, his verdict “is not the same as deciding in any positive way that these events never happened.” He was found “not guilty”, which is not the same as “innocent”. What the verdict says is that the prosecution failed to make a case that would result in the severe penalty of imprisonment. Ghomeshi had a VERY good lawyer who exploited the current rules of evidence and procedure to raise “reasonable doubt” (this is known in legal circles as “whacking the victim”). If this case had been tried in the UK, where the rules on the collection of evidence and the procedures in the court are different (and were changed because of notoriously lax prosecutions of sexual predators), the outcome might have been different today.

It is time for a change. This is the same criminal justice system that failed the women of Vancouver’s Downtown Eastside and allowed a murderous predator free rein from 1995 to 2002. This is the same criminal justice system that has been indifferent to the disappearance of 1200 aboriginal women. This is the same justice system in which “36 per cent of the women and 25 per cent of men sentenced to provincial and territorial custody in Canada are Indigenous”. As the recent article in Maclean’s put it, “The evidence is unambiguous: If you happen to be Indigenous, justice in Canada is not blind.” 

It is time for a change. We need a systemic review of the biases in our criminal justice system. We need a change in the way in which evidence is collected. We need a review of “whacking the victim” and the subversive techniques used by lawyers to get around existing rules of evidence. There needs to be a better education about how victims can make reports and promptly so that more convictions can be secured.

Jian Ghomeshi is not done with his legal troubles. There is another trial ahead. I hope that the Crown prosecutors, having now seen how Ghomeshi’s defence team works, will be better prepared for this new trial. I hope that the witness in that case will be better able to withstand the ruthless attack that the three witnesses in this first case experienced. And I hope that not only will justice be done, but will be seen to be done.