The Truth Will (Not Always) Set You Free

Posted by  on September 29, 2017
The Truth Will (Not Always) Set You Free

Everyone has heard of “He said-she said” cases. But what does that mean?

Can I be convicted on just the word of another person? Yes you can. It happens every day in courts across the country.

Don’t you need more evidence than that? No, it is possible for a defendant (the accused) to be found guilty solely on the testimony of a complainant (the alleged victim).

People often think that the mere statement of a complainant in a domestic or sexual assault case is “not evidence”. They come to the lawyer’s office and protest “but they don’t have any evidence, just her statement!”. However, a statement by a witness is evidence, just as much as a gun or a photo or DNA.

In fact, the statement of the alleged victim of an assault is what is known as “direct evidence” because the witness directly witnessed the crime. “Circumstantial evidence” is indirect evidence, from which a crime can be inferred. For example, photos of a victim’s injuries can support the conclusion that she was assaulted.

Credibility cases are those where the final judgment involves a battle between the testimony of the complainant, and the testimony of the defendant. This is most common in domestic assault and sexual assault situations, the “he said- she said” cases.

Many people assume that convictions are rare in “he said-she said” cases. That is incorrect.

Yes, the burden of proving a case rests with the Crown, which means that it is not up to the defendant to prove his innocence. And the threshold is a high one: before a defendant can be found guilty of a criminal offence, the Crown must prove the case beyond a reasonable doubt.

However, just because there is no evidence other than a complainant’s statement that she was assaulted does not mean that the assault did not occur, and does not mean that the defendant will be found Not Guilty.

How can a judge find me guilty on just her testimony? Think of the players in the courtroom as professional lie detectors. Over years of experience, criminal lawyers, and judges in particular (who were lawyers before they became judges) learn to sort through statements and testimony and other forms of evidence to decide who is telling the truth, and whether the Crown has proven the case beyond a reasonable doubt.

In most cases, to conclude that the case has been proven to that high standard requires more than just the word of the complainant. An examination of all of the context and circumstances, enhanced by other evidence, such as photos, DNA, motive, other witnesses, etc., helps to paint a picture for the judge (or jury) to assist them in determining guilt or innocence.

But in some cases the testimony of the complainant, often accompanied by other evidence, is enough to persuade the judge that the case has been proven beyond a reasonable doubt, regardless of what the defendant says.

If I testify really well, answer all the Crown’s questions, and there are no flaws in my testimony, I will be found Not Guilty, right? Not necessarily. A judge does not have to find flaws in a defendant’s testimony to find him guilty.

There are cases where the judge believes the complainant and finds her evidence so compelling that even though he can find no fault with the defendant’s evidence, he still finds him guilty. Read this quote from the important case of R. v. J.J.R.D., [2006] CanLii 40088 (OCA), where that exact scenario played out:

“…There was nothing in the substance of the appellant’s evidence, or the manner in which he gave his evidence, which would cause the trial judge to disbelieve that evidence…”

How is it possible for a judge to completely reject a defendant’s evidence even though there are no flaws in it? The answer is that the complainant’s evidence is so compelling that the judge believes it. And because the complainant and defendant cannot both be telling the truth, the judge rejects the defendant’s evidence and finds him guilty, even though he does not see anything problematic with his evidence.

That might seem really unfair, and illogical, and an artificial result that only lawyers can appreciate. And you would have a point. But because sexual assault is such a serious offence, with such serious long-term penalties, it is important to be aware that in some cases, testifying flawlessly in your own defence, and coming through the Crown’s rigorous cross-examination with flying colours, is not enough. You can be telling the truth to the judge, and the judge finds nothing wrong in your testimony, but because the complainant’s evidence is so compelling, he rejects your evidence for that reason alone, without finding fault with it. That makes these cases particularly dangerous.

Because of the seriousness of these cases, especially sexual assault, and because they are tricky to defend, they must be handled properly, by a lawyer experienced in defending credibility cases. Everything must be examined and considered in preparing your defence, because even though you might be innocent, even though you might be telling the truth, in the end it is the judge who decides what the truth is, and who is telling it.

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Arun S. Maini, lawyer and founder of The Defence Group, has practised criminal law since 1995. He’s a graduate of the University of Toronto and Dalhousie University Law School. After completing his articles at a Bay St. law firm, Mr. Maini joined the federal Department of Justice as a prosecutor of drug trafficking, tax evasion, and immigration fraud cases in Toronto, Brampton and Vancouver. In 1999, Mr. Maini transferred to the provincial Crown attorney’s office in Brampton, where he prosecuted a wide range of criminal offences, from theft to murder. In 2003, Mr. Maini left the government to establish The Defence Group. Mr. Maini handles all criminal offences and regulatory prosecutions.

Over more than 25 years as a criminal lawyer, Mr. Maini has prosecuted and defended hundreds of criminal cases, and has extensive jury trial experience. Mr. Maini has also lectured at The Advocates’ Society and has taught advocacy at the Law Society and Osgoode Hall Law School’s Intensive Trial Advocacy program. Maini appears occasionally in the media to comment on criminal law – see examples from the CBC, the Toronto Star, and the National Post.

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