“Better that ten guilty persons escape that that one innocent suffer”

- Sir William Blackstone (1765). 

Recently criminal defence lawyers have come under fire for aggressively cross-examining complainants in sexual assault cases. Some have gone as far as to suggest that it is unethical for counsel to aggressively cross examine when they “know” their client is guilty. Our criminal justice system is based on adversarial proceedings with the Crown and Defence representing the State and the accused. Parliament has legislated the limits on the defence in cases of sexual assault. It is the Crown’s job to notify a judge of any breach of the rules, and a judge’s job to enforce the rules. It is not only a defence lawyer’s job, but it is her ethical obligation to ask the tough and often distasteful questions to ensure that the system only convicts those who have been proven guilty beyond a reasonable doubt.

This is the premise upon which our system is built. As a criminal defence lawyer, I must defend my client to the best of my ability, in accordance with the laws Parliament has passed as interpreted by the Courts.  Furthermore, the Commentary to the Law Society of Upper Canada Rules of Professional Conduct 5.1-1 states,

“In adversarial proceedings, the lawyer has a duty to the client to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client’s case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law.”

The reason for my mandate is that if I do my utmost to defend my client, and a judge still finds her guilty, then the chance of an innocent person going to jail is minimized, though it always remains a possibility. 

Where do you find reasonable doubt? Reasonable doubt lies in the answers to the hard questions, the distasteful questions, the questions that the law permits and the Rules of Professional Conduct demand a lawyer ask.

Parliament has set out rules a defence lawyer must follow in a criminal trial. It is up to the Crown to notify the judge of any breaches and the judge to rule on the same. One rule prohibits adducing evidence of prior consensual sex between a complainant and an accused[i].  Another rule limits the ability of defence counsel to access any of a complainant’s medical, psychiatric, therapeutic, counseling or other private records, even where the Crown has copies of those items, thus overruling an accused’s Charter right to full disclosure of all evidence in the Crown’s possession[ii]. Other rules provide certain witnesses testimonial accommodations, such as testifying via closed circuit outside the courtroom and/or having a support person present while testifying[iii]. Parliament legislated these rules in an effort to remove stereotypes and make the criminal process easier on witnesses. A final aspect of Parliament’s desire to remove stereotypes in sexual assault cases was to remove the rules requiring corroboration and making a complaint at the earliest opportunity. The result of these changes is that to convict someone of a sexual assault, the Crown does not have to present any evidence beyond the complainant’s testimony which is legally sufficient to prove guilt beyond a reasonable doubt.

Perhaps an unintended consequence of these changes is that the only evidence left to test in such a case is the complainant’s word. As a result, testifying in a criminal trial is often difficult. The judge sits high above the witness (except where he testifies via closed circuit TV), proceedings are solemn, a witness takes an oath to bind his conscience, and lawyers ask hard questions that must be answered candidly and truthfully. Testifying in court is not like a casual story one tells a friend, co-worker or even a stranger. In the latter case, one may be loose with language, gild the lily, fib or downright lie. One can be forgiven for being less than candid and truthful in everyday conversation. In everyday life, one’s truth often depends on one’s point of view. 

On the other hand, criminal trials do not involve loose talk, gilding the lily or lies. Criminal trials are not just about a search for the truth, they are also about potential punishment, which often included deprivation of liberty, and a criminal record which has long lasting consequences. Before the State punishes an individual, takes away her liberty, or saddles her with a criminal record, they must prove her guilt beyond a reasonable doubt.

Where do you find reasonable doubt? Reasonable doubt lies in the answers to the hard questions, the distasteful questions, the questions that the law permits and the Rules of Professional Conduct demand a lawyer ask.  Only when these questions are asked and answered can a trier of fact determine whether the State has met its burden of proving guilt beyond a reasonable doubt. 

About the Author

Jody Berkes, of Berkes Newton-Smith, is chair of the Ontario Bar Association Criminal Justice Section and a Certified Specialist in Criminal Law.  His views are his alone and do not reflect the views of the OBA.

Another side of the issue

What can be done to make prosecuting sexual assault less hellish for complainants without impairing the accused’s right to a proper defence? Maryellen Symons of the OBA Women Lawyers Forum explores another perspective. Read more