Naysayers of Complainant Rights Are Making Things Worse for Complainants

There is a growing tendency within parts of the legal profession to portray the criminal justice system as complainant-unfriendly, if not outright complainant-hostile.

I think that characterization is wrong. More importantly, I think it is harmful.

There is no question that the justice system is imperfect. Anyone who has spent any meaningful amount of time in a courtroom knows that. There are delays. There are procedural problems. There are cases in which people are treated poorly. There are laws and practices that can and should be improved.

But acknowledging those shortcomings is very different from telling people that the system is fundamentally hostile to them.

That distinction matters.

When cynicism about the justice system becomes conventional wisdom, it can begin to masquerade as insight. The repeated assertion that the system does not work eventually becomes accepted as though it were an established fact. And once people lose confidence in the justice system, the consequences extend well beyond the courtroom.

One of the ironies is that this sort of rhetoric is often presented as being in the interests of complainants. I am not convinced that it is.

Over the years, the criminal law has been amended in numerous ways to make it easier for complainants to participate in the process. There are restrictions on certain forms of questioning. There are protections governing the use of a complainant’s prior sexual history. In appropriate circumstances, witnesses can testify by video rather than having to face the accused in a courtroom. There are numerous other procedural protections designed to reduce difficulty and anxiety associated with giving evidence.

These changes were made for understandable reasons. The criminal justice system should not unnecessarily traumatize people who come forward with allegations of criminal conduct.

But there is another principle that cannot be forgotten: the accused is entitled to a fair trial.

The two principles are not mutually exclusive. In fact, a justice system worthy of public confidence must protect both.

There is a temptation in some quarters to treat any procedural protection afforded to an accused as evidence that the system is failing complainants. That is a dangerous way of looking at criminal justice. The presumption of innocence, the burden of proof and the right to challenge the evidence are not technical obstacles placed in the way of justice. They are fundamental safeguards against wrongful conviction.

And we should be careful about assuming that every reform necessarily makes the system more accurate. Some of the changes designed to make prosecutions easier or complainants more comfortable have, in my view, created greater risks of wrongful conviction. Whether the effect can ever be quantified with any precision is another question entirely. But the possibility is real enough that it should not simply be dismissed because the reforms were introduced with good intentions.

There is also a broader issue that receives insufficient attention.

Criminal allegations do not always exist in isolation from other litigation. In family law disputes, for example, allegations of criminal conduct can sometimes become part of a much larger battle over parenting, custody and access. That does not mean that allegations are false. Nor does it mean that genuine victims should be doubted.

It does mean that the existence of an allegation cannot itself be treated as proof of wrongdoing.

That is precisely why the criminal justice system requires an independent investigation and an impartial determination of the evidence.

Former Supreme Court of Canada Chief Justice Beverley McLachlin captured the distinction well in her retirement remarks when she observed that complainants have a right to have their complaints investigated, but they do not have a right to a particular verdict.

That is an important principle.

A complaint deserves to be taken seriously. It deserves to be investigated. A complainant deserves to be treated with dignity and respect.

But the conclusion of the process cannot be predetermined.

There is a fundamental difference between saying that the justice system should listen to complainants and saying that it should believe every allegation. The former is essential to justice. The latter would undermine it.

Criminal law exists in large part because society has decided that accusations of serious wrongdoing should be tested through a process governed by evidence and legal principles rather than by accusation alone.

It is understandable that someone who has been the victim of a crime may want certainty, immediate action and a particular result. But the criminal justice system cannot be constructed around the desire of any individual participant for a particular outcome.

That is not because complainants do not matter.

It is because justice requires something more than the interests of one side.

The danger in continually describing the justice system as hostile to complainants is that eventually people may come to believe that there is no point in reporting crime, no point in participating in the process and no possibility of a fair result.

That is a self-fulfilling prophecy.

If people are repeatedly told that the system does not work, some will stop using it. If fewer matters are reported or prosecuted, confidence falls further. And the resulting lack of confidence is then offered as evidence that the original criticism was correct.

That is how cynicism becomes conventional wisdom.

We should certainly continue to criticize the criminal justice system where criticism is justified. Lawyers, judges, legislators and academics should be prepared to identify shortcomings and argue for reform.

But criticism should not become an ideology.

A justice system that protects complainants is necessary. A justice system that protects the accused is also necessary. Those objectives are not enemies.

The difficult part of criminal justice is maintaining both at the same time.

If we abandon that balance in the pursuit of a system in which an accusation is treated as sufficient to produce punishment, we have not created a more just system. We have created a system in which the safeguards of criminal justice have been replaced by the certainty of accusation.

History gives us plenty of examples of what happens when that occurs.

The answer to imperfections in the justice system is not to abandon the principles that make it a justice system in the first place.

It is to make the system better while preserving those principles.

Public confidence in justice depends upon something more difficult than simply ensuring that complainants feel heard. It depends upon people believing that when a serious allegation is made, it will be investigated fairly, the evidence will be tested properly and the outcome will be determined according to law.

That is a standard worth defending.