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Lowering the standard of proof a dangerous proposition: Harnett

Article originally published on February 15, 2016 by Advocate Daily.

Although the Jian Ghomeshi trial sparked calls from some women’s rights advocates and legal experts for changes to the way the justice system handles sexual assaults, Toronto criminal lawyer Aaron Harnett disagrees there is a need for deep legal reform and says any move to lower the standard of proof would be dangerous.

“Just because the Canadian public has been following this trial closely and it has left some people concerned doesn’t mean the system is terribly broken or in need of substantial change,” he tells 

Harnett, who has handled numerous sexual assault cases over his 25-year career, says that while the legal system is not perfect, the judicial process has been hundreds of years in the making and has been fine-tuned as a result of innumerable mistakes that have been corrected and procedures that have been revised.

Harnett notes that for some, the justice system may appear less palatable when its inner workings are exposed. 

“It’s much like the saying, a novel is like a sausage – you might like the final taste but you don’t want to see how it’s made,” he says. 

Ghomeshi has pleaded not guilty to four counts of sexual assault, each carrying a maximum of 18 months in jail, and one choking charge that has a maximum sentence of life in prison.

Harnett weighs in after a Toronto lawyer said the Ghomeshi trial highlighted how the adversarial model presently in place in Canada’s legal system is “structurally ill-suited” to deal with sexual assault allegations. David Butt told the Canadian Press that the current system is “basically trial by war” and is “probably the worst thing to do to complainants who are coming forward to talk about very intimate and distressing violations of their sexual integrity.”

The article also noted how Canada’s legal system has made strides in recent decades in trying to recognize the unique nature of sexual assault cases, specifically the implementation of rape shield laws that ban using a woman’s sexual history to discredit her.

The high-profile Ghomeshi trial showed how witnesses sometimes change their statements under cross-examination that relates to details of memories doing back more than a decade, says the article. 

Ghomeshi’s lawyer, Marie Henein, was also noted in the press for her “relentless” cross-examination. 

“Moving away from an adversarial model, I think, is going to be necessary because look at the Ghomeshi trial – who would voluntarily put themselves through that?” said Butt.

But Harnett says the adversarial system is largely based on the need to protect the rights of both sides – the rights of the alleged victim and the accused person, who is deemed innocent until proven guilty beyond a reasonable doubt. 

Cross-examinations are meant to be intense in order to scrutinize the complainant’s allegations – and that process is a necessary one to flesh out the evidence to ensure that a case is proven beyond a reasonable doubt for a guilty finding, says Harnett. 

“That is the standard of proof required in a criminal case,” he says. 

Harnett disagrees there is a need for deep legal reform in the area of sexual assaults or to somehow treat these types of allegations with less scrutiny. 

“It would be dangerous to lower the standard of proof or to somehow disable the defence in its cross-examination of the evidence,” he says. 

To those people who are calling for such change, Harnett doesn’t mince words: “I’m willing to bet that if they were charged with a crime they would quickly start to understand the importance of proof beyond a reasonable doubt,” he says.

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