so the other day i had canada’s justice system explained to me


Still slightly gobsmacked after a conversation about our justice system with someone who knows how these things work, who is part of the system at a very high level (let’s call them Hank), during which conversation I was informed that the system is, in fact, designed to protect the accused… the onus being on the accuser to prove that a certain ‘thing’ occurred as alleged.


I was also informed by Hank that, depending on which court the case is tried in (in this province that would be either the Superior Court of Justice or the Ontario Court of Justice), it’s up to the accused  as to whether or not they would *like* a jury. It’s also up to the accused as to whether or not they would *like* to take the stand. Or, I’m assuming, whether or not they’d like extra frothy froth on their latte.

The accuser (aka the alleged victim) has no such choice. Hmmm. So while they are repeatedly interrogated and grilled, dirty laundry hung out for all to see, the accused (aka the person who allegedly choked and punched them) is not asked a single question…. Have I got this right?

Hank nods. Yes indeedy, he says, repeating that it’s in order to protect the accused.  He goes on to say what a grand system it is too and if I’m ever accused of anything I’ll be darned pleased about it.

I’m sure I would be, I say, but something just doesn’t sit right. For example, it seems a tad unfair to the accuser (so often women it’s worth noting). Especially if the grilling gets into whacking territory.

Hank doesn’t comment on whacking. He winces instead. Then he explains (rather haughtily I think) that if we didn’t assume innocence for the accused until proven guilty, we’d be like Russia.

Or France, I add.

More wincing. (I’m pretty sure Hank is partial to French wine, croissants and the light in Provence.)

Or France, I say again…

Yes, yes. Or France. He admits that France (along with a number of other countries) subscribe to what is known as an Inquisitorial System, unlike Canada, which takes its model from the British Adversarial System, a system that allows the alleged aggressor to have frothy froth if they choose while the alleged choking victim who did some childish and stupid things in her past can just please sit there and explain why she can’t remember every detail of every day for the past fifteen years.

It’s called lying!  Hank says. He believes accusers whose can remember the choking but not the bikini are nothing but liars!!  He seems to enjoy the word,  insinuating the lying happens a lot. After all, he says, what’s to stop a woman saying whatever she wants?

Yeah, women get all the breaks, I say.

He doesn’t respond. And when I want to talk about the way trauma plays with memory Hank does not welcome this line of chat.

The worst thing he can think of happening, he tells me suddenly, is that an innocent person be found guilty. He says this with tremendous passion.

What about a guilty person who is found innocent? I ask. The question hangs in the air.

Finally, I mention the quite dandy idea of “a subset of judges with special training in the psychological dynamics of sexual assault” and while Hank agrees that it may not be an entirely bad thing he also says that it’s not entirely necessary. He also says Heather Mallick is crazy.

I disagree. Her piece last week is right on the money.

I ask Hank if it were his daughter that was in the accuser’s position, that is, a daughter who claims she was beaten and choked by a ‘date’, would he advise her to take the case to court?

He says he would not advise any such thing.

I regret not thinking at the time to ask him if it were his son who was in the accuser’s position, at the hands of, say a superior at work, a son who had been choked, threatened, punched. Would he advise his son to speak up or just put his tail between his legs and let it pass, keep going to work like a good boy. And if, after a dozen years when his son couldn’t keep it to himself any longer and spoke up for justice… but couldn’t remember every detail… couldn’t remember that, oh yeah, eleven years ago he accepted that invite to the boss’s backyard BBQ and even sent a thank you note…AFTER the (alleged) choking/punching incident… would you call your son a liar, Hank?

Would you??

And if you’d advise your son differently than your daughter… would you mind telling me why?

I’m curious. Plus, it’s not a small point. But even if the advice you were to give both your son and your daughter was the same, i.e. to let the accused (aka possibly known abusive person) go free and possibly do it again, and again… and again…  then would you mind telling me again about justice?

Because I think I missed something.

And you, Hank, you know about these things.

Oh, and, if anyone’s asking, I’ll have a little extra froth.

No one’s asking? Fine. Never mind….



7 thoughts on “so the other day i had canada’s justice system explained to me

  1. Frothy frothing at the mouth when I read this, Carin. Somewhere, somehow I really, truly wanted to believe the legal system, be it inquisitorial or adversarial, was going to ‘get it’, and maybe even in my lifetime. Grrrr.

    1. Frothing too, Cheryl. But there we are, eh? It needs to change. Simple as that. It’s an old system designed by men. And in the case of abuse or assault (among any gender) there are all kinds of inequities about this supposedly egalitarian process. Trouble is the whole legal system is still run by men. So what’s the problem, little lady? (Nothing against the blokes but it would be good if perspective was broadened a bit — pun not intended, but I like it.)

      What matters is that BOTH accused and accuser be accountable for their ‘alleged’ behaviour. And what matters perhaps even more is that we understand the psychology of abuse.

      1. So, on another (quasi-hopeful tack) if the accused does not enter a defence could the system construe this as not having a defensible position in this case? I still possess a nugget of hope that the system and the decision March 24th will surprise me. Holding my breath …

  2. If the accused has already admitted the accused likes “consensual rough sex,” surely the judge will look at this behaviour as suspect. If violence causes arousal in the accused, then isn’t it likely that the two go together for him in any circumstances where violence makes him powerful (the sex act).

    20-something women do stupid things (like 20-something men). They don’t yet know that flirting with the rough sex trade won’t change him, make him play nice, or apply his media powers to advance their careers. The accuser made a mistake. She got caught up in the fast lane. Foolish girl, yes. But this obvious pattern of violent “gestures” to women who claim it came out of the blue is difficult to overlook.

    My greatest fear is that a degrading testimony raked over the coals of the media fire will mean that fewer frightened and abused women will risk reporting similar incidents. We all lose in that case.

  3. Is this the twist to “innocent until proven guilty”? Which sounds so high-minded, but I see now is sinister when put into practice.

    1. I’d like to wipe out both ‘innocent until proven guilty’ and ‘guilty until proven innocent’ approaches and go with something like ‘where there’s smoke there’s sometimes fire so let’s have a good thorough look at the situation from all sides’. I wonder if that’s too reasonable.

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