Enemy of the State? Why You Should Treat the Defence and Crown as Equals.

AuthorIzadi, Melody

Many perceive defence counsel as snaky, tricky, tactical used car salesman-like villains in courtrooms all across our countries. It's easy to blame us--we defend criminals, right? The Crown Attorney on the other hand, is often championed as justice fighters--putting the bad guys in jail where they belong, virtuous and pure.

The #MeToo and #believethevictims movements are obviously focused on the rights of complainants in sexual assaults, but the movement also seeks to villainize defence counsel who asks questions in cross-examination and passionately advocate for their client. It is these very moments in the courtroom that are glorified as shining examples of the slimy business of defending accused persons and the myth that defence counsel are pulling a fast one over the eyes of lady justice. Because there's no risk of wrongful convictions, or the Crown acting improper, right? Let's just do away with defence counsel all together since apparently we don't further the goals of justice.

But yet, amidst the fictitious fog, the Ontario Court of Appeal reminds us all of the parameters of the Crown Attorney, because they too, can cause a miscarriage of justice because of their conduct in the courtroom. In R. v. J.S., [2018] O.J. No. 576, on appeal from a judge and jury trial held in the Superior Court of Justice, the Court of Appeal drew bright fluorescent lines around the Crown Attorney's permissible conduct when they are presenting a weak case. In J.S., the accuser did not see her alleged attacker and only saw a shadow. The accused was known to her but she never identified him as her attacker. She testified that 98% of what happened she doesn't remember. Before the trial, she told friends that it could have all just been a bad dream. There was some male DNA found on the complainant's underwear, but the forensic expert could not determine who deposited the fluid, or what the fluid was, or even when it was deposited. The complainant had a boyfriend at the time.

The accused and his girlfriend testified that they were in bed together when they heard cries from the complainant's room. The accused entered the room with his girlfriend and they helped her calm down until police arrived. The accused remembered helping the complainant find her underwear at her request; the girlfriend remembered watching that take place. The complainant was taken to hospital and swabs were taken to complete a traditional "rape kit." There was no semen detected on any of...

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