[News] Jake Virtanen on leave from the Canucks after sexual misconduct allegation

[MBates]

Sexual assault law is arguably the most complex area of Canadian law to navigate at present. I have conducted many trials and appeals including to the Supreme Court of Canada in sexual assault matters in what has nearly been a 20 year criminal defence career. It has never been more difficult to handle these cases than it is right now.

It is rather uniquely an area where there can essentially be both a genuinely traumatized victim AND no criminal conduct at the same time.

It is an area where conduct of an accused that is otherwise completely lawful, moral, and pro-social, can become seriously harmful in an instant if a sexual partner changes their mind. The difference between a conviction or an acquittal can sometimes depend on whether such an internal change of mind was ever communicated.

The same area of law also covers some of the most disturbing abusive conduct a person can commit against another human being. The spectrum is incredibly wide.

Criminal trials are regularly necessary to run based on no issue other than whether the accused person honestly and reasonably believed that they had received communicated consent - verbally or by actions.

Consent must be obtained to literally each and every instance of sexual touching, and can of course be withdrawn at any time. Historically and continuing to today, mythical and stereotypical reasoning has been used to unjustly discredit complainants as liars. Our appeal courts are consistently addressing repeated legal errors of this nature by very experienced defence lawyers and trial judges. And prosecutors are now also finding themselves admonished for presuming myths and stereotypes as to how accused persons are "supposed" to act. This is not easy work.

The political (legislative) responses have been far from clean and straightforward. Only last month in a 6-3 split, in a losing dissent, a highly respected Supreme Court of Canada justice wrote about Gomeshi-case-inspired defence disclosure rules [my emphasis added]:

These limits are disproportionate and cannot be demonstrably justified in a free and democratic society. In pursuing a legitimate purpose, Parliament has proceeded in a ham‑fisted manner, without regard for fundamental rights of accused persons. The regime is not merely disadvantageous to the defence; it interferes significantly with the accused’s ability to avoid self‑incrimination, effectively cross‑examine prosecution witnesses, and adduce relevant and probative evidence during a proceeding that will decide their liberty. While the regime may advance Parliament’s objective of protecting complainants’ privacy, dignity, and equality, it does so only marginally, and at the expense of core fair trial rights.

Parliament has legislated a formula for wrongful convictions. Indeed, it has all but guaranteed them.

He also wrote:

This is not minimally impairing; rather, it potentially eviscerates the effectiveness of cross‑examination, particularly in sexual assault trials where the complainant will often be the only witness. And, I repeat, it raises the near certain prospect of innocent persons being convicted.

That last point deserves special emphasis. Rather than effecting a minimal impairment, this ham‑fisted measure is an instance of legislative overkill. It shows little to no regard for the rights of accused persons, some of whom will be not only presumptively innocent, but actually so ⸺ although, in many such cases, no longer provably so, since their sole tool for demonstrating their innocence has been statutorily neutered.

https://scc-csc.lexum.com/scc-csc/sc...19428/index.do

Put all of those technicalities of the law (and a bunch of others) up against the reality of sexual activity being often less than orderly, and the opportunities for very serious injustices are everywhere.

So, while I can appreciate that many are trying to have good-faith debates of this case (of which I make no comment as I have not followed it), sexual assault trials generally, and what a jury verdict means or does not, it is somewhat maddening to see many incorrect statements being made.

So I will just offer some points that I think are important:

- A finding of "not guilty" cannot itself be said to be a finding of factual innocence. In reality, even a belief that an accused is "likely guilty" is supposed to lead to an acquittal.

- On the other hand, in Canada, a jury that unanimously finds that an accused has been the victim of a malicious false accusation cannot tell us that. All they have available to them is a finding of "not guilty". It remains a criminal offence for a juror to disclose the contents of jury deliberations (except in extremely limited circumstances that are not applicable here). So, you absolutely cannot conclude that a "not guilty" verdict just meant that a jury had a mere reasonable doubt. In any case, they can, and might actually have come to the unanimous view that the allegation was false.

- Guilty verdicts in a he-said / she-said case are not in any way uncommon or particularly difficult to obtain. The trier of fact is fully entitled to disbelieve / reject the testimony of an accused and believe the testimony of the complainant.

- Defence lawyers don't have to ask about parallel civil cases and money as a possible motive to lie. Wouldn't a truthful sexual assault victim also file a lawsuit? Without more the filing of a lawsuit seeking money for damages is not very compelling stuff for cross examination.

- I do not know percentage likelihood of false accusations but they happen. I have seen them after a complainant eventually admits they fabricated the allegations. But here's the thing about percentages. If it is a one in a million chance you will face a false accusation in the public at large, do you know how much relative prevalence matters if you are the one? Zero percent.

- A person falsely accused may choose not to sue for any number of valid reasons. To conclude that an acquitted person is probably guilty just because they elect not to sue a complainant is unwarranted. It might be accurate, unless it absolutely is not.

- The idea that a complainant wouldn't put themselves through a horrible traumatic experience unless they were making a legitimate allegation also makes multiple presumptions about human behaviour that may apply or not...and usually are based on one assuming without evidence that their own values, beliefs and experiences are shared with that of the complainant.

[Winsor_Pilates]

Originally Posted by PepsiFree

It'd probably be easier to ask simple questions of people if you didn't repeatedly resort to editorializing when you summarize the quote (why you need to summarize one line of text into a different line of text? who knows!) with the added snarky tone of "So this is what you think? Got it!"

Like, you're kind of just being a dink about it. Why would someone want to answer your question or entertain you?

Was nothing snarky about my initial question.
I was only a dink about it after I got a dink response back to my initial question.

And of all people to give advice on not being a snarky dink

[PepsiFree]

Originally Posted by Winsor_Pilates

Was nothing snarky about my initial question.
I was only a dink about it after I got a dink response back to my initial question.

And of all people to give advice on not being a snarky dink

That's why my advice is worth listening to. I have extensive experience

[Mr.Coffee]

Originally Posted by GioforPM

No one is assuming anything. However, we can use some common sense about it.

I have a bit more time now, so am just curious here. What is truly fundamentally different between "assuming anything" and "using common sense"? In this context, it seems like they're the same thing? Then you go onto this...

Originally Posted by GioforPM

Common sense is knowing the stats, knowing how juries work, knowing the criminal law standard, knowing that any complainant has to put herself through a real wringer to pursue charges and that sexual assault in a private setting is incredibly hard to prove.

The jury made a finding based on an almost impossible standard to meet in a he said/she said case. They may well believe he did it.

Well, knowing all of those things you list can obviously still lead to assumptions that are wrong and based on events that did not happen. That's why we have this process and system in place, and why simple common sense is not the arbiter of justice.

Also, there are good reasons why a jury has to make a finding on an "almost impossible standard to meet", don't you think? This is what I meant when I said I was surprised a lawyer would state this almost as if it is a bad thing (or, perhaps that is not what you meant and this could be my misinterpretation of what you're trying to convey in which case, apologies).

Originally Posted by GioforPM

I am suggesting, based on stats, the extremely low percentages of false accusations, and how juries work, yeah, he probably did.

Here you are making a claim that he still performed the act, which is certainly possible. However, we now have more information than we did before the trial and which does provide a much more robust defense of Virtanen and certainly questions the authenticity of the claim. Yet in the face of this, you still make this claim. This is what I find surprising coming from a lawyer. Honestly, I don't even mean this comment as an insult but I am honestly just surprised a lawyer would carry this opinion based on your extensive knowledge of the law (not being sarcastic here, I know you know the law).

Originally Posted by GioforPM

No one is complaining about the verdict. And no one is saying “it’s not worth the paper it’s printed on”. He gets to go free. That’s what it’s worth. What I’m saying is that (a) it doesn’t mean innocent and (b) based on a whole lot of factors there’s a decent chance he did it. Hell, she could still quite conceivably win a civil case with the court saying it’s more likely than not that he assaulted her. See Simpson, OJ.

I can agree with the bolded part and it likely is worth her pursuing same but I personally think the balance of the original claim and whole paradigm as to whether or not Virtanen is "innocent" is completely shifted with this decision but hey, maybe that's just me I guess or maybe I am not understanding something.

[GioforPM]

Originally Posted by Mr.Coffee

I have a bit more time now, so am just curious here. What is truly fundamentally different between "assuming anything" and "using common sense"? In this context, it seems like they're the same thing? Then you go onto this...



Well, knowing all of those things you list can obviously still lead to assumptions that are wrong and based on events that did not happen. That's why we have this process and system in place, and why simple common sense is not the arbiter of justice.

Also, there are good reasons why a jury has to make a finding on an "almost impossible standard to meet", don't you think? This is what I meant when I said I was surprised a lawyer would state this almost as if it is a bad thing (or, perhaps that is not what you meant and this could be my misinterpretation of what you're trying to convey in which case, apologies).



Here you are making a claim that he still performed the act, which is certainly possible. However, we now have more information than we did before the trial and which does provide a much more robust defense of Virtanen and certainly questions the authenticity of the claim. Yet in the face of this, you still make this claim. This is what I find surprising coming from a lawyer. Honestly, I don't even mean this comment as an insult but I am honestly just surprised a lawyer would carry this opinion based on your extensive knowledge of the law (not being sarcastic here, I know you know the law).



I can agree with the bolded part and it likely is worth her pursuing same but I personally think the balance of the original claim and whole paradigm as to whether or not Virtanen is "innocent" is completely shifted with this decision but hey, maybe that's just me I guess or maybe I am not understanding something.

The paradigm has not shifted that much really. Civil trials in Canada are almost exclusively done without a jury. So there’s not much concern that a judge alone civil trial doesn’t understand that the criminal verdict doesn’t have a whole lot of impact legally, given the standard of proof. Given the issues in this kind of a case, a jury almost was forced to come to an acquittal (though it seems like they had some difficulty).

I don’t think his case was assisted much by the trial. It wasn’t so much a robust defence as a standard one intended to raise a doubt.

[Johnny Makarov]

Holy... i just saw a pic of Virtanen for the first time. He looks exactly like Christian Bale from American Psycho...

[Mr.Coffee]

Originally Posted by GioforPM

The paradigm has not shifted that much really. Civil trials in Canada are almost exclusively done without a jury. So there’s not much concern that a judge alone civil trial doesn’t understand that the criminal verdict doesn’t have a whole lot of impact legally, given the standard of proof. Given the issues in this kind of a case, a jury almost was forced to come to an acquittal (though it seems like they had some difficulty).

I don’t think his case was assisted much by the trial. It wasn’t so much a robust defence as a standard one intended to raise a doubt.

But they did raise some kind of doubt, that is certain now.

That in and of itself should give anyone and everyone pause as to the allegation.

[GioforPM]

Originally Posted by Mr.Coffee

But they did raise some kind of doubt, that is certain now.

That in and of itself should give anyone and everyone pause as to the allegation.

I think you should go read a standard jury instruction and see how low his bar was. She said “he did it”. She had a very plausible story. He said “no, I didn’t”. They had to acquit. Unless they tossed out his testimony 100%. Which, unless it was totally and obviously a lie, they couldn’t.

https://thewalrus.ca/why-many-women-...ssault-trials/

[GioforPM]

If you compare sexual assault cases to physical assault cases reported to police you find that the former are charged less, prosecuted less, taken to a ompleted trial less and result in far fewer convictions. It’s just harder:

https://www150.statcan.gc.ca/n1/pub/.../54870-eng.htm

[Snuffleupagus]

Originally Posted by GioforPM

Common sense is knowing the stats, knowing how juries work, knowing the criminal law standard, knowing that any complainant has to put herself through a real wringer to pursue charges and that sexual assault in a private setting is incredibly hard to prove.

The jury made a finding based on an almost impossible standard to meet in a he said/she said case. They may well believe he did it.

There is a pile of stuff that bugged me about this case, she waited almost 4 years to file charges coincidentally after Virtanen signed a $5.1m deal and she lost her job, she told the court she wasn't attracted to him sexually but yet he had flirting text messages from her, her 2 witnesses had two different story's and both looked staged by all accounts.

Since people want to give their opinion and say he's guilty I'll give mine.

They had consensual sex and he didn't call her again, a scorn woman popped up 4 years later hoping for a payday.

[BoLevi]

Originally Posted by GioforPM

I think you should go read a standard jury instruction and see how low his bar was. She said “he did it”. She had a very plausible story. He said “no, I didn’t”. They had to acquit. Unless they tossed out his testimony 100%. Which, unless it was totally and obviously a lie, they couldn’t.

https://thewalrus.ca/why-many-women-...ssault-trials/

As a society we made the choice that it is preferable to let guilty people go free than convict innocent people. That's it.

[GioforPM]

Originally Posted by BoLevi

As a society we made the choice that it is preferable to let guilty people go free than convict innocent people. That's it.

That’s true in theory. Except in practice it happens all the time - just not certain kinds of cases.

[Fighting Banana Slug]

As usual in these criminal case discussion, MBates nails it. It is required reading.

[BoLevi]

Originally Posted by GioforPM

That’s true in theory. Except in practice it happens all the time - just not certain kinds of cases.

If you want up increase the number of rightful sexual assault convictions you will also increase the number of wrongful ones.

[flylock shox]

Originally Posted by Fighting Banana Slug

As usual in these criminal case discussion, MBates nails it. It is required reading.

Yup. That's some blog-worthy stuff up there.



I get the sense he was compelled to write it by sheer annoyance at all the jibber-jabber. I only wish we had more experts in their field to do the same in other threads.

[jayswin]

Originally Posted by Fighting Banana Slug

As usual in these criminal case discussion, MBates nails it. It is required reading.

Some of the best posts in CP history are when Mbates decides to chime in on criminal law. Just fascinating.

[Aarongavey]

I prefer the Chief Justice’s + 5 other justices analysis of the law in JJ myself where the changes to the criminal code to give sexual assault victims a chance in a criminal case to enforce long existing tape shield laws were upheld and deemed to be constitutional. But one out nine of the Justices did throw some serious shade in that case.

[Erick Estrada]

Originally Posted by Fighting Banana Slug

As usual in these criminal case discussion, MBates nails it. It is required reading.

Posts like that restore some faith in the justice system. I don't want to live in a world where I can be accused of something I didn't do and just because statistics are not in my favor, I will forever be viewed as guilty in the eyes of most people including those in the justice system.

[GioforPM]

Originally Posted by Erick Estrada

Posts like that restore some faith in the justice system. I don't want to live in a world where I can be accused of something I didn't do and just because statistics are not in my favor, I will forever be viewed as guilty in the eyes of most people including those in the justice system.

I think you didn’t get what either I or MBates said if you think the justice system affects how people are “viewed” in the eyes of the public as guilty or not guilty. He really didn’t say anything substantively different from me.

[Sandman]

Just got sent a headline from Oilers nation that reads: Jake Virtanen's second division Swiss team suspends him and seeks trade due to "selfish attitude that irritated his teammates". Tried to post a link, but it wouldn't let me.