The #MeToo movement and the fallout from a high-profile Toronto sex assault acquittal are undermining long established fair trial rights, says Dale, principal of Dale Law Professional Corporation.

“People are just jumping to these conclusions and assuming that people are guilty,”

Dale points to the words of 18th-century English jurist Sir William Blackstone, who said, “It is better that 10 guilty persons escape than that one innocent suffer.”

Without the presumption of innocence as a cornerstone of a fair trial, the potential for corruption and wrongful convictions skyrockets, she says. But fair trial rights are being weakened for sex assault accused on several fronts, Dale says.

Moreover, the federal government is posing an imminent threat to the rights of the accused by tabling Bill C-51, which is about to pass into law, she says.

The bill amends the Criminal Code to declare that certain records, like texts or e-mails, in the possession of the accused are presumptively inadmissible and that if the defence wants to make use of them must apply to have a hearing on the issue in which the complainant can participate.

Dale voiced her opposition to the amendments to the House of Commons Standing Committee on Justice and Human Rights in the fall of 2017. She calls it the “Ghomeshi amendment” because she says she believes it came about largely in reaction to the 2016 high-profile trial of former CBC host Jian Ghomeshi, whose defence made effective use of such evidence in cross-examining the complainants.

“The biggest threat to the presumption of innocence is the hashtag that came out of the Ghomeshi trial, which was ‘#believethevictim,’” says Dale.

The hashtag was criticized by Ontario Superior Court Justice Anne Molloy in her 2017 acquittal of three police officers in the alleged sex assault of a female parking enforcement officer, Dale points out.

Molloy wrote: Although the slogan ‘Believe the victim’ has become popularized of late, it has no place in a criminal trial” as it imposes “a presumption of guilt on the person accused of sexual assault.”


Interview published in the Advocate Daily

Related Posts