Jian Ghomeshi arrives for his first day of court in Toronto, February 1, 2016. REUTERS/Mark Blinch
Jian Ghomeshi’s trial for sexual assault is being called the trial of the year.
After all, what can be more salacious than a former celebrated CBC Radio host being suddenly fired due to sexual assault charges and allegations of abuse?
Ghomeshi’s trial starts today and he has been charged with four counts of sexual assault and one count of overcoming resistance by choking. The last charge is the most serious. As per s. 246 of the Criminal Code of Canada, choking, suffocating or strangling a person upon conviction can result in life imprisonment.
He is also charged under s. 265 (2) of the Criminal Code. This is the section that deals with sexual assault and “applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.”
The burden of proof to find Ghomeshi guilty is on the Crown prosecutors, which are the government lawyers who are prosecuting Ghomeshi for the alleged crimes. The Crown has to prove their case “beyond a reasonable doubt" but what does this mean?
In the Supreme Court Case R. v. Starr, the court stated that the term beyond reasonable doubt “falls much closer to absolute certainty than to proof on a balance of probabilities.” A balance of probabilities, which is the lesser standard, means it’s more likely than not that the person did what they were accused of.
However, beyond a reasonable doubt carries a higher standard of proof, meaning the Crown prosecution must prove that it’s almost certain their version of events happened. If the Crown cannot prove this to the judge, or the judge and jury (if the accused elected to have a trial by jury), then it will likely not result in a conviction for the accused.
In cases of sexual assault, the burden of proof is especially difficult, because the evidence often comes down to the complainant’s testimony and credibility. This is especially true when the alleged crimes happened years ago, as in the Ghomeshi case, in which the alleged assaults date to 2002 to 2003.
Former Crown prosecutor Karen Bellehumeur told Metro that the passing of time can be an obstacle to such cases because “not only has the memory of the survivor of the abuse degraded so that peripheral details are not as clear, but also there is no longer the corroborating evidence to be investigated by police."
Not to mention how traumatic it is for an alleged victim to have to take the stand and describe what happened to her, especially knowing that her testimony can make or break the case.
However, as most sexual assault trials depend on evidence given by the alleged victim, they have little choice but to testify.
Bellehumeur adds that in these type of cases proving the accused is guilty beyond a reasonable doubt is going to be quite hard, because “when you have a case that’s just one word against the other…then a criminal case has just such a high standard of proof that it becomes very difficult.”