Canadian Lawyer

28 M A Y 2 0 1 6 w w w . C A N A D I A N L a w y e r m a g . c o m argument and upheld the conviction and sentence. The obligation to defend your client does not extend to this type of cross-exami- nation, Craig suggests. A pilot project in Ontario, where in addition to the right to counsel if there is a third-party records application a complainant will also have up to four hours of government-funded legal services, is a good first step to protect the rights of sexual assault victims, says Craig. While the funding is not sufficient to act for a client in a civil action, it is a positive development, says Amanda Dale, executive director of the Barbra Schlifer Commemorative Clinic in Toronto, which provides legal and counselling services to female victims of violence (the clinic is named after a lawyer who was murdered the same day she was called to the bar). "The Crown is not representing a complainant's interest. She needs independent legal advice," says Dale. "This will give women concrete advice about their options" at an early stage. For example, a lawyer can outline the process in going to police, or other options such as the types of civil actions that can be filed, claims to criminal compensation boards, or where to go to receive counselling. This does not mean that Dale thinks the criminal justice sys- tem should be abandoned despite the low rates of conviction. "It is the only way we have to make perpetrators accountable. Do we as a society want to agree to grant criminal immunity for sexual assault? My answer is no," says Dale. She suggests it may be time to lobby the federal government to enact laws to grant standing to complainants in sexual assault trials. As well, she echoes Craig's views that lawyers and judges in these proceedings need to rein in improper questioning of witnesses. In the Ghomeshi trial, the cross-examinations were not unu- sually graphic or lengthy, yet they may still have run afoul of statutory provisions in place to prevent sexual history stereotypes being used to impeach the credibility of complainants. Section 276 of the Criminal Code states that evidence that a complainant has engaged in "sexual activity" with the accused or another per- son is presumed not to be admissible to support an inference that the complainant "is less worthy of belief " or more likely to have consented to the incident that is before the court. The activity can be before or after the alleged sexual assault. For a defendant to try to put forward this type of evidence, a written application is required to explain its relevance and a voir dire is held in camera by the trial judge. The term sexual activity has been given a broad definition by the Ontario Court of Appeal, including evidence that a complain- ant and accused slept together on another occasion without sex and there was a goodbye kiss in the morning. The cross-examinations of the complainants in the Ghomeshi trial by defence lawyer Marie Henein were replete with e-mails and photos her client had saved, about followup conversations of a sexual nature, a bikini photo, and cuddling in a park. All of the electronic communications were apparently saved by Ghomeshi and brought out in cross-examination by Henein. Crown attorney Michael Callaghan did not ask the defence to prove the authentic- ity of any of the documents or provide any context to the commu- nications to show why there were admissible. Callaghan, an experienced and well-liked prosecutor in Toron- to, also did not ask for s. 276 applications to be brought when the defence put this type of content to the witness. Nor were the Criminal Code requirements raised by Horkins. The only time it came up was when Callaghan consented to the defence asking the third complainant about a sexual act she admitted to performing on Ghomeshi not long after she said she was assaulted by the then- CBC host. In his verdict ruling, Horkins singled out the content of the e-mails, including the bikini photo, as evidence the complainants were not credible and did not meet what he described as their disclosure obligations. Under a section entitled "the flirtatious e-mails," Horkins said this undermined the first complainant's assertion that she was traumatized by Ghomeshi. "The negative impact that this after-the-fact conduct has on L.R.'s credibility is surpassed by the fact that she never disclosed any of this to the police or to the Crown," the judge wrote. "The expectation of how a victim of abuse will, or should, be expected to behave must not be assessed on the basis of stereotypical models. Having said that, I have no hesitation in saying that the behaviour of this complainant is, at the very least, odd." The way the judge determined that the complainants were neither reliable nor credible, based on their "after-the-fact" actions and lack of disclosure about that conduct, was appropriate, says Michael Edelson, a partner at Edelson Clifford D'Angelo Friedman LLP in Ottawa, who has conducted numerous sexual assault trials in his career. "It goes to the veracity and the accuracy" of their tes- timony, says Edelson. He says Henein did exactly what a defence lawyer should do. Criticisms of the focus of her cross-examina- tions are "off base," says Edelson. The need to assess the credibility (truthfulness) and reliability (accuracy) of a witness was set out 300 45 44 Percentage of those cases with a fi nding of guilt. Percentage of those cases that were withdrawn or stayed by the Crown. Sexual assault 55 Percentage of individuals convicted of sexual assault who received a custodial sentence. Median number of days imposed for those who did receive a custodial sentence. 3,002 63 Total number of sexual assault cases with a disposition in court in Canada in 2013-14 Overall percentage of cases of all off ences in 2013-14 that ended with a fi nding of guilt. Percentage of sexual assault cases in which the accused was male. 99 by the numbers Source: Adult Criminal Court Statistics, 2013-14. Statistics Canada

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