If the Jian Ghomeshi trial has done anything, it’s once again focused attention on the way we handle sexual offences in Canada’s courts.
That attention has included plenty of debate about how alleged victims are treated in the process, and whether there shouldn’t be a better way. It’s brought all kinds of suggestions, from special court processes for sex offences to changing how the testimony of alleged victims would be considered by the court.
I’m not really comfortable with changing the way alleged victims’ testimony is treated: while it may be acceptable for police departments to say, as they prepare to lay charges, that they have a blanket policy of believing witnesses’ statements, that same policy of belief can’t exist in a courtroom - at least not as long as we maintain a presumption of innocence for the accused until proven otherwise.
And a presumption of innocence is pretty darned critical when you’re talking about crimes that carry hefty sentences and even broader societal implications.
But there are things we could try, and one of them is almost counter-intuitive. We could start by taking the cases out of the public eye — not completely, because an open court system is a cornerstone of our judicial system. Justice has to be done, and seen to be done, and the media is part of the mechanism that helps a public that can’t attend court “see” justice being done.
But think about something National Post columnist Christie Blatchford has been arguing about for years - whether or not those accused of sex crimes should be identified before a conviction is obtained.
Blatchford wrote, “… I was uneasy using the names of men in cases where virtually everyone else, including those testifying against them, is guaranteed anonymity. It offends some rule of fundamental fairness that complainant and witness should have their identities protected, but the people with the most to lose - the accused men - do not. Those two men were acquitted, but not before their names were dirtied and their families humiliated.”
It’s a good point: get acquitted of assault, and that’s it. Get acquitted of a sexual offence, and doubt will always hang over your head. (Some other crimes as well, but I’m addressing the problem of sexual offences trials here.)
But there is another value in the media not being able to name the complainants in a sexual assault case until and unless a conviction is registered, and it’s a far more utilitarian one. News agencies are not overflowing with resources. I spent years as an assignment editor - and later as a news editor - and I know well the difficult balance of the stories you feel you should be covering and the hard fact that you have to fill a newspaper or broadcast every day. Given that there is that big black hole of newsprint or webspace every day, you sometimes have to opt for a bird in the hand, instead of a much bigger bird in the bush that may never come out.
Now, newsrooms are even smaller and that choice must be even harder to make.
It’s unlikely anyone except the most flush of newsrooms would dedicate resources to sit and watch a court case where all that could be reported was, “Complainant A said that Accused B did …” or wait until a conviction was registered to splash out a single day’s big story.
Take the célèbre out of the cause célèbre, and you will at least lower the media temperature in the courtroom, taking stress off those both on the witness stand and in the dock.
The down side of that? Well, for one, the discussion around the Ghomeshi case wouldn’t even exist right now. There’s a lot to balance on the scales of justice.
- Russell Wangersky is TC Media’s Atlantic regional columnist. He can be reached at email@example.com - Twitter: @Wangersky.