Sunday February 14, 2016

Why civil court could provide the justice sexual assault survivors seek

Protesters wait for Jian Ghomeshi to arrive for the third day of his trial on Thursday, Feb. 4, 2016.

Protesters wait for Jian Ghomeshi to arrive for the third day of his trial on Thursday, Feb. 4, 2016. (Frank Gunn/Canadian Press)

Listen 9:52

Former trial lawyer and Crown prosecutor Sandy Garossino says the Ghomeshi trial shows there is a real need to make it easier for survivors of sexual assault to find justice — but she doesn't believe it will happen in the criminal justice system. 

"I don't think we we can go much further in that system. I think we do have to look for the solution outside the criminal justice system," she says. 

In a criminal trial, the onus is on the Crown to prove that the accused is guilty beyond a reasonable doubt. Garossino says that even though the adversarial nature of criminal trials can be difficult for survivors, it's almost impossible to alter their structure without letting go of core principles meant to protect the accused from the power of the state. 

"The criminal justice system, by its very nature, imposes strict principles that make it almost impossible for complainants to be placed on a level playing field with the accused," she says. "Those principles are protected by the Charter of Rights and Freedoms, and they are core principles... I don't think we can tinker with this."

She suggests looking to civil court or restorative justice models as an alternative. 

"If you were to go to a different form of proceeding, a civil proceeding, or something in that vein... where the parties both have to give evidence and the trier of fact has to listen to both sides, and both sides have to produce documents and be cross-examined by the other... and the burden of proof is not beyond a reasonable doubt but perhaps, say, on balance of probability, then complainants would start to feel like they were in the game," says Garossino. 

The option to try sexual assault cases in civil court already exists, though Garossino notes civil cases are often very expensive.

She says it will always make sense to prosecute some sexual assault cases in criminal court, such as child abuse cases, but suggests many survivors may find it easier to find the justice they are seeking outside of the criminal justice system. 

Click on the button to listen to the interview.