At the Jian Ghomeshi trial, everything unfolded as it “should.” Prodigiously talented legal commandos for the defence reduced the prosecution’s case to a smouldering ruin.
Then, the judge – by current convention a mere observer of the carnage – stated what legal observers had been describing as obvious in his final ruling: The evidence did not meet the standard for criminal conviction. This meant the accused walked away, wearing the legally indisputable (but, for some, ill-fitting) cloak of innocence, and his accusers were left to somehow make sense of things on their own.
Is that the best approximation of justice we can aspire to?
By long-standing tradition, our legal processes are defined by the intense adversarialism – trial by battle – on display at the Ghomeshi trial. But in an era when, despite decades of piecemeal reform to the judicial system, reporting rates for sexual-assault allegations remain scandalously low (according to the best available estimates only 3 per cent of assaults are reported), it is time to rethink our commitment to adversarialism itself.
What perverse illogic deludes us into believing that a sexual-assault survivor would ever wish to seek justice by placing herself, unprotected, in a well-armed opponent’s crosshairs?
Justice includes restoring a community’s peace after it has been breached by an alleged crime. Adversarial justice, therefore, is peacemaking by fighting. Think that sounds nonsensical? You are not alone.
We adopted this trial-by-battle idea centuries ago, and have barely refined it since, despite multiple sobering lessons about the fraught relationship between fighting and peacemaking. Our ongoing fealty to adversarial justice remains anchored in medieval fantasies about the utility and nobility of battle. We need to leapfrog our thinking ahead many centuries. Only then can we align our judicial processes with the thoughtful settlement of controversy.
Contemporary psychology about dispute resolution has become much more sophisticated in recent decades, moving away from a crude, winners-and-losers binary. Our legal system has not caught up. It must create an environment that is inclusive of complainants’ experiences, and in which they can speak without fear of being put on trial themselves. Only then will we start to win the trust of sexual-assault survivors.
The Supreme Court of Canada has emphasized repeatedly that a criminal trial must be a search for truth. But we have overlooked, in stubbornly clinging to adversarial justice, the fact that truth, as the saying goes, is the first casualty of war. This aphorism plays out all too often in courtrooms, when cross-examiners set out to destroy the witness herself, rather than explore the accuracy of the narrative she presents. Adversarialism sanctifies the vacuous notion that only the most powerful speak the truth.
A criminal trial is also an exercise in historical inquiry: What happened that led to the charge before the court? So, we can assess the efficacy of adversarialism by comparing it to the methods of professional historians, who likewise reconstruct the past.
Good historians explore the evidentiary record with scrupulous neutrality; good courtroom lawyers explore the evidentiary record with intense premeditated partisanship. Historians can do good work building upon the efforts of their peers; good courtroom lawyers consistently discredit the efforts of their peers. Historians deconstruct historical myths; our legal culture perpetuates myths about who is believable, or not, and why. To historians, the quip “History is written by the winners” is sad irony; to courtroom lawyers, it is gospel.
So, who will better reconstruct the past – historians, or courtroom lawyers?
Lawyers are by training small-c conservative thinkers. From our first day of law school, we are taught to seek legal precedents to justify our positions. It thus becomes an article of faith that the wisdom to guide future endeavours lies in the past. The problem with this attitude is stark: Legal minds cling sanctimoniously to outmoded values and practices. Some, such as the presumption of innocence, are worth preserving. But others are not: Adversarialism strangles innovation and blinds us to our continuing failure to serve the needs of sexual-assault survivors. There are far better paths to truth.
What might those better paths look like?
They will have three main features.
First, they must be designed with a deep understanding of the nuanced realities of sexual-assault survivors. It would be wrong to simply replace one paternalistically imposed method of doing justice with another.
Second, they must empower survivors to participate fully, on terms equal (but not necessarily identical) to those upon which accused persons participate in our justice system.
Currently, an accused person is entitled to vigorous legal representation. But if a sexual-assault complainant shows up with a lawyer, the response system-wide is (with very limited exceptions) suspicious and even overtly hostile. An example from my own practice: When representing one complainant, I asked the Crown attorney in the case if I could have a copy of the statement she had made to police. The Crown’s reply: No. I had to threaten litigation in order to obtain a copy of my own client’s statement.
Third, there must be real choice for complainants about what sort of justice services are available to them.
Some may prefer traditional criminal prosecution, which brings with it the possibility of putting their assailant in jail. Others may prefer to have the state carry forward a civil suit only. That would mean no criminal conviction and no jail sentence, should the defendant be found liable. But, at the same time, the proof required would be on a “balance of probabilities,” rather than the higher criminal standard of “beyond a reasonable doubt.” As well, the alleged perpetrator could not invoke the right to silence: could not decline to answer the allegations.
Still other survivors may prefer a more restorative approach. Truth-and-reconciliation processes have played a positive role in addressing historical victimization on a broader, societal scale (for example, in South Africa and here in Canada). There is no reason we cannot thoughtfully adopt similar practices for individuals.
Regardless of the approach chosen by the survivor, judicial processes must be dedicated to making the experience palatable for complaintants in ways that it clearly is not now – without, of course, sacrificing a commitment to truth-seeking. That entails recognizing, through the best psychological research available, just how varied the response to the tragedy of sexual victimization can be, and incorporating that knowledge into all aspects of the system.
Replacing adversarialism will not usher in a blissful era of justice and harmony. Court cases, be they civil, criminal or restorative, don’t happen unless people behave their worst. But in these circumstances, where the litigants themselves often spit mutual animosity, judicial processes must turn down the heat as part of moving toward resolution. Adversarialism only turns it up.
We have a lot of work to do before we can rightly say that sexual-assault survivors are truly integrated into our justice system. Real justice will require according them a real voice, and real choice.
David Butt is a Toronto-based criminal lawyer who routinely acts for complainants in sexual-assault cases, and represented one of the witnesses in the Jian Ghomeshi trial.
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