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BY DIANA DAVISON, Special to the Toronto Sun
On Nov. 25, in his Toronto Sun column (“We need to strengthen sex assault shield law”), Andre Marin claimed that he was “in a twilight zone” while debating my opposition to controversial Bill C-51 at a recent panel discussion.
Marin distorted the content of the debate by omitting the presence and arguments from the other panelist — distinguished defence lawyer Joseph Neuberger — and the event’s moderator, long time television/radio broadcaster and defamation lawyer Lorne Honickman.
It was easier for Marin to disparage me, a lowly civil rights activist, than it was to rebut the expert opinion from Neuberger that this bill will increase wrongful convictions.
The legislation under debate is widely seen as a response to Jian Ghomeshi’s acquittal on sexual assault charges. If passed, Bill C-51 will expand the definition of “prior sexual history” to include anything of a “sexual nature” and require the accused to disclose all text messages, or emails in their possession prior to trial.
Jian Ghomeshi, left, and his lawyer Marie Henein arrive at court in Toronto on Thursday, Jan. 8, 2015. (Nathan Denette/THE CANADIAN PRESS) Nathan Denette / THE CANADIAN PRESS
Supporters of this bill have dismissed it as mere “housekeeping” to bring the Criminal Code up to date with decisions already made in the Supreme Court. Those who oppose it, like Neuberger, have called it a “catastrophic” shift in rules of evidence that will increase wrongful convictions. Evidence directly related to the sex act in question would have to be disclosed in advance.
The debate was punctuated with the appropriate amount of vexation towards such dangerous legislation.
While Marin argued that the bill would not have blocked any evidence used in the Ghomeshi case, he failed to acknowledge the devastating effect of giving a complainant advance warning of contradictory evidence. As Neuberger repeatedly pointed out, the complainant would have legal counsel to assist in blocking those texts or emails from trial and, with time to plan, could “tailor their evidence” around the inconvenient messages.
Kadian Noble cries as she recounts an alleged sexual assault by Harvey Weinstein during a news conference in New York, Tuesday, Nov. 28, 2017. She alleges that Weinstein sexually assaulted her in 2014 during the Cannes Film Festival. (AP Photo/Seth Wenig) Seth Wenig / AP
The element of surprise is key to exposing lies under cross-examination but it can also expose flaws in memory. In cases of sexual assault, which Marin correctly noted usually have no witnesses, it is not just the complainant’s credibility that we need to test. As I pointed out in the debate, a complainant may honestly believe he or she is telling the truth but the evidence shows that memory to be unreliable.
I was amused to see Marin dismiss me as a “loudmouth,” but shocked he attributed quotations to me that were neither words I said nor representative of my position. I was accused of saying there was “data” and “lots of stuff out there” showing that false accusations were prolific. The only statistical assertion made was that false accusations are almost never prosecuted. Journalists who fabricate quotations don’t often suffer consequences either.
We don’t actually know the statistics for sexual assault or for false accusations. They are impossible to calculate with any certainty.
One thing that everyone agreed upon was that Justice William Horkins arrived at the correct decision in the Ghomeshi trial.
Perhaps Marin was right that I am a loudmouth but, if that’s what it takes to stop a bill that will send innocent men to prison, Marin’s flimsy character attack on me will not shut me up. As a member of the audience said, men are on “the front lines” hoping they don’t get wrongfully convicted while lawyers debate and say they will see how this “plays out” once the legislation is passed. It is not acceptable to send innocent men to jail waiting for Supreme Court to declare the new law unconstitutional.
Incredibly, Marin tried to bolster his position by quoting a tweet from Lena Dunham posted on August 4, asserting that women never lie about rape. Since then, Dunham has been forced to apologize for pronouncing that her colleague, Murray Miller, was falsely accused of sexual assault. While Dunham issued her apology under pressure, there is little doubt she continues to believe that Miller was falsely accused.
Bill C-51 is dangerous legislation designed to satisfy what Joseph Neuberger called “the ire of certain members of our community.” We are lost in the sea of an online outrage industry. Concern for due process is at an all time low. The question now is whether or not our legal system will pass this bill and cave in to the demands of vigilante mobs who still can’t accept that Jian Ghomeshi was acquitted because he was innocent of the charges.
On Nov. 25, in his Toronto Sun column (“We need to strengthen sex assault shield law”), Andre Marin claimed that he was “in a twilight zone” while debating my opposition to controversial Bill C-51 at a recent panel discussion.
Marin distorted the content of the debate by omitting the presence and arguments from the other panelist — distinguished defence lawyer Joseph Neuberger — and the event’s moderator, long time television/radio broadcaster and defamation lawyer Lorne Honickman.
It was easier for Marin to disparage me, a lowly civil rights activist, than it was to rebut the expert opinion from Neuberger that this bill will increase wrongful convictions.
The legislation under debate is widely seen as a response to Jian Ghomeshi’s acquittal on sexual assault charges. If passed, Bill C-51 will expand the definition of “prior sexual history” to include anything of a “sexual nature” and require the accused to disclose all text messages, or emails in their possession prior to trial.
Jian Ghomeshi, left, and his lawyer Marie Henein arrive at court in Toronto on Thursday, Jan. 8, 2015. (Nathan Denette/THE CANADIAN PRESS) Nathan Denette / THE CANADIAN PRESS
Supporters of this bill have dismissed it as mere “housekeeping” to bring the Criminal Code up to date with decisions already made in the Supreme Court. Those who oppose it, like Neuberger, have called it a “catastrophic” shift in rules of evidence that will increase wrongful convictions. Evidence directly related to the sex act in question would have to be disclosed in advance.
The debate was punctuated with the appropriate amount of vexation towards such dangerous legislation.
While Marin argued that the bill would not have blocked any evidence used in the Ghomeshi case, he failed to acknowledge the devastating effect of giving a complainant advance warning of contradictory evidence. As Neuberger repeatedly pointed out, the complainant would have legal counsel to assist in blocking those texts or emails from trial and, with time to plan, could “tailor their evidence” around the inconvenient messages.
Kadian Noble cries as she recounts an alleged sexual assault by Harvey Weinstein during a news conference in New York, Tuesday, Nov. 28, 2017. She alleges that Weinstein sexually assaulted her in 2014 during the Cannes Film Festival. (AP Photo/Seth Wenig) Seth Wenig / AP
The element of surprise is key to exposing lies under cross-examination but it can also expose flaws in memory. In cases of sexual assault, which Marin correctly noted usually have no witnesses, it is not just the complainant’s credibility that we need to test. As I pointed out in the debate, a complainant may honestly believe he or she is telling the truth but the evidence shows that memory to be unreliable.
I was amused to see Marin dismiss me as a “loudmouth,” but shocked he attributed quotations to me that were neither words I said nor representative of my position. I was accused of saying there was “data” and “lots of stuff out there” showing that false accusations were prolific. The only statistical assertion made was that false accusations are almost never prosecuted. Journalists who fabricate quotations don’t often suffer consequences either.
We don’t actually know the statistics for sexual assault or for false accusations. They are impossible to calculate with any certainty.
One thing that everyone agreed upon was that Justice William Horkins arrived at the correct decision in the Ghomeshi trial.
Perhaps Marin was right that I am a loudmouth but, if that’s what it takes to stop a bill that will send innocent men to prison, Marin’s flimsy character attack on me will not shut me up. As a member of the audience said, men are on “the front lines” hoping they don’t get wrongfully convicted while lawyers debate and say they will see how this “plays out” once the legislation is passed. It is not acceptable to send innocent men to jail waiting for Supreme Court to declare the new law unconstitutional.
Incredibly, Marin tried to bolster his position by quoting a tweet from Lena Dunham posted on August 4, asserting that women never lie about rape. Since then, Dunham has been forced to apologize for pronouncing that her colleague, Murray Miller, was falsely accused of sexual assault. While Dunham issued her apology under pressure, there is little doubt she continues to believe that Miller was falsely accused.
Things women do lie about: what they ate for lunch. Things women don't lie about: rape.
— Lena Dunham (@lenadunham) August 4, 2017
Bill C-51 is dangerous legislation designed to satisfy what Joseph Neuberger called “the ire of certain members of our community.” We are lost in the sea of an online outrage industry. Concern for due process is at an all time low. The question now is whether or not our legal system will pass this bill and cave in to the demands of vigilante mobs who still can’t accept that Jian Ghomeshi was acquitted because he was innocent of the charges.