Understanding the criminal trial process.

• Author: Wawzonek, Caroline

Some 20 years ago, a sexual offender broke into a series of homes in downtown Vancouver. Several of the victims visually identified Ivan Henry as the perpetrator based on an in-person line up, a photographic line up or when he was sitting as the accused in court. Given the similarities between the cases, Henry was convicted of ten sexual assaults, declared a dangerous offender and sentenced to an indeterminate jail sentence--literally life.

Years later, a Crown prosecutor saw the same similarities in new sexual assault files. With further investigation, DNA evidence linked a new suspect to the old crimes. Twenty-seven years later, Ivan Henry was acquitted and freed.

The women who testified against Henry were not liars. They were tragically mistaken in the context of traumatic events. Of note, they were not professionally cross-examined during the trial because Mr. Henry wound up representing himself.

How far can--and should--the criminal justice system go in testing the evidence of someone who is, or at the very least believes themselves to be, a sexual assault survivor?

The Nature of a Criminal Trial

Lawyers are required to follow established Codes of Conduct which say this about the role of lawyers as advocates:

The lawyer has a duty to the client to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client's case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law.

For survivor advocates, this quote may seem to ignore the reality of the harm caused by sexual violence. That is not the harm the criminal trial process is intended to address. It is a misconception that criminal trials are about witnesses. A criminal trial is not for victims.

The criminal trial process is centered on preventing the horrifying tragedy of locking up an innocent person in jail for 27 years. It is designed to ensure that if the most extreme power of the state--a denial of freedom and branding as a criminal--is used against a citizen, it is done only where we have used a process that is as fair as possible.

If the trial process determines a person guilty, the justice system, through sentencing, considers the effects of a crime on victims and society in general. At this stage victims can provide personal details through Victim Impact Statements and the Crown speaks for the public about the impacts of the offence. At the same time, the...