Should you testify when charged with sexual assault?

Should you testify when charged with sexual assault?

When preparing to defend a client on sexual assault charges, one of the key considerations is whether that person should testify in their own defence. That decision is not as straightforward as it may seem, even if the defendant is adamant they are not guilty of the crime.

There are many reasons for not having them take the stand, the main one being it is a stressful experience. The accused knows they are facing a serious charge for a crime that carries a very negative social stigma. If they lose, they will almost certainly go to jail while leaving their family and professional lives in shambles.

The fear of that possible outcome can be overwhelming and may affect the testimony they give or the way it is delivered. When we are stressed, our words do not come out as well as they should.

As defence counsel, I don’t want to give the Crown a chance to pick up on weaknesses that will reflect on my client’s credibility. In some cases, clients readily admit to me their behaviour at the time of the incident was not the best. Maybe they had been drinking or behaving in a way they would rather not revisit in court, even though their actions were certainly not criminal. If that person testifies, they can be questioned by the Crown who may insinuate their overall testimony is untrustworthy.

A Charter right not to testify

The right of the accused not to give testimony at their own trial is enshrined in Section 11(c) of the Charter of Rights and Freedoms. It states that any person has the right “not to be compelled to be a witness in proceedings against that person in respect of the offence.”

If the accused decides not to testify the judge should instruct the jury this silence is in no way indicative of guilt. In Canada, a person accused of a crime is presumed innocent until found guilty by a judge or jury. This presumption is one of the most important rights in our criminal justice system, though that sometimes seems to be forgotten in high-profile sexual assault cases.

The presumption of innocence benefits the accused in many ways, the main one being that they do not have to prove their innocence. Instead, the onus is on the Crown to convince the court of their guilt “beyond a reasonable doubt.”

Those last four words are very important.

The Crown’s burden to go beyond a reasonable doubt

A seminal 1991 judgment clearly sets the obligation of courts to acquit those accused of sexual assault when there is any degree of doubt.

As the judgment notes: “Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:

• First, if you believe the evidence of the accused, obviously you must acquit.
• Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
• Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
• If that formula were followed, the oft repeated error which appears in the recharge in this case would be avoided. The requirement that the Crown prove the guilt of the accused beyond a reasonable doubt is fundamental in our system of criminal law. Every effort should be made to avoid mistakes in charging the jury on this basic principle.”

What is beyond a reasonable doubt?

The judgment spells out what it means for someone to prove something beyond a reasonable doubt.

It is rarely possible to prove anything with absolute certainty and so the proof or the burden of proof on the Crown is only to prove guilt beyond a reasonable doubt,” court documents read. “A reasonable doubt is an honest and fair doubt based on reason and common sense. It is a real doubt, not an imaginary or frivolous doubt which might be conceived by an irresponsible juror to avoid his or her plain duty.”

To summarize this decision, if a judge or jury believes the accused’s testimony is sincere, they must acquit. If they don’t believe the accused but they have reasonable doubt about other evidence, they also must acquit. Only when the Crown can prove guilt beyond a reasonable doubt can they convict. Reaching this threshold is a heavy burden for the Crown, which is why those accused of sexual assault need the services of an experienced criminal lawyer versed in the intricacies of the law. In many he-said/she-said cases, defence counsel’s ability to find inconsistencies in testimony can lead to a non-guilty verdict for the accused.

A case example of when to stay silent

In 2016, a prominent national radio personality faced multiple sexual assault allegations involving six women in Toronto. After a short trial where he did not testify, he was acquitted, with the judge ruling there was insufficient evidence to establish proof beyond a reasonable doubt.

In his ruling, the judge pointed out numerous inconsistencies in the plaintiffs’ testimony brought to his attention by defence counsel. For example, one woman “testified at length [about his] bright yellow Volkswagen ‘Love Bug,’” though the man did not acquire that car until seven months after the date of the alleged incident.

“In a case which turns entirely on the reliability of the evidence of the complainant, this otherwise, perhaps, innocuous error takes on greater significance,” the judge wrote in his decision. “The impossibility of this memory makes one seriously question, what else might be honestly remembered by her and yet actually be equally wrong?”

Another plaintiff failed to mention she sent the man flowers after a date where she later claimed she choked him.

“Sending thank you flowers to the man who had just choked you, may seem like odd behaviour,” the judge wrote. “Whether or not this behaviour should be considered unusual or not, this was very clearly relevant and material information in the context of a sexual assault allegation. The deliberate withholding of the information reflects very poorly on [her] trustworthiness as a witness.”

The judge stated this case illustrates the “need to be vigilant in avoiding the … dangerous false assumption that sexual assault complainants are always truthful. Each individual and each unique factual scenario must be assessed according to their own particular circumstances … to be presumed innocent until proven guilty by the evidence presented in a court of law, is the fundamental right of every person accused of criminal conduct.”

Getting clients ready for testifying

If a client decides to testify in their sexual assault trial, I stress the importance of staying calm during testimony. Questions from the Crown may stir an emotional response, so stay focused and do not let emotions overrule logic.

A witness who is angry may exaggerate or appear to be less than objective, or emotionally unstable. Keep your temper. Always be courteous, even if the lawyer questioning you appears discourteous. Don’t appear to be a “wise guy” or you will lose the respect of the judge and jury.

Even if the accused is not planning to take the stand, I tell my clients to write down the details of what happened on paper. Trials can be a year or more away and what seems like a trivial detail at the time could resurface as evidence or help establish your credibility at trial.

Questions must have a “good faith basis”

In criminal trials, lawyers must have a “good faith basis” for asking questions. A 2004 Supreme Court decision provides us with an explanation of what those words mean:

“‘A good faith basis’ is a function of the information available to the cross-examiner, his or her belief in its likely accuracy, and the purpose for which it is used … the information may fall short of admissible evidence and may be incomplete or uncertain, provided the cross-examiner does not put suggestions to the witness recklessly or that he or she knows to be false. The cross-examiner may pursue any hypothesis that is honestly advanced on the strength of reasonable inference, experience or intuition and there is no requirement of an evidentiary foundation for every factual suggestion put to a witness in cross-examination. Where a question implies the existence of a disputed factual predicate that is manifestly tenuous or suspect, a trial judge may seek assurance that a good faith basis exists for the question.”

How can I help you?

Facing allegations of sexual assault can devastate your career and community standing and could even lead to imprisonment if you're convicted. As a sexual assault lawyer in Ottawa, I stand ready to build your defence. If under investigation or charged, contact me before speaking with the police. One of the outlined defences could apply to you, or we can tailor a strategy to your case. Reach out to me at 613.863.8595 for a free consultation.