Some believe that Gilbert Rozon’s version of the facts at his trial for rape and indecent assault, which was in total contradiction to that of the complainant, is implausible and that there is not a judge who would believe that. Think again. In fact, according to the rules established by R v. W (D) Supreme Court, it is a very good defense strategy to have a version that is called “adversarial”.
Indeed, when we talk about contradictory versions, Judge Mélanie Hébert has a duty to comply with certain jurisprudential rules and cannot simply refute Rozon’s version by saying to herself: “well let’s see that cannot be that is not what happened! ”. If she doesn’t believe him, she must explain her decision and find contradictions in her testimony. Something that is not that easy to do, even if you don’t believe a person on a first impression.
Despite this, the credibility of the complainant and the accused is very important when they testify in this kind of trial. It is indeed constantly examined by the judge and the purpose of the famous cross-examinations of lawyers is to make the person testifying lose it. It is not, however, a contest of credibility between the accused and the complainant.
Considering the Charter of rights and freedoms; Considering the principle of the presumption of innocence; Considering the rigor of the heavy burden of proof which the Crown has to convict someone “beyond a reasonable doubt”; Given the maxim in Canada where we prefer to see 10 criminals at large than to see a single innocent in prison, the judge must therefore proceed in this manner:
- If she believes Rozon she must obviously acquit him. Hence the importance of the credibility of the accused’s testimony;
- If she does not believe him, she still has to ask herself if her testimony raises a reasonable doubt as to what may have happened;
- Even if she has no doubts as to her testimony, she must ask herself whether she is convinced beyond a reasonable doubt of her guilt taking into account all of the evidence. It is in this part that the credibility of the testimony of the alleged victim is very important.
Despite this approach, it is certain that in the end, in reality, it amounts to saying that most of the time if she believes the complainant she tends not to believe the accused, but it is a little more technical than it seems and the judge must have the rigor to proceed as described above since the result may be different. In a way we can say that if both versions are credible, she will have to lean on the side of the accused and acquit him.
We now understand better why the lawyers asked to postpone the pleadings to November 6, 2020 and that they also requested the paper transcription of the recording of the trial, which the judge accepted, since the task will be very difficult in order to find contradictions in the testimonies.
The line is thin as they say. From what we observed following the trial, the lawyers did not really succeed in destabilizing the witnesses, both the complainant and the accused, with gown effects during cross-examination. No “Ha HA! you lied!” So we can assume that lawyers will arrive very prepared for oral argument by trying to raise contradictions by using the written evidence. Everything will be in the subtlety and without trumpet.
As for the question “Will Gilbert Rozon be acquitted?”, I asked the forensic analyst and veteran criminal lawyer Jean-Pierre Rancourt whom I received on the show. Lawyers at the Bar QUB Radio and this is what he replied to me:
“I did not follow the trial in court, I go with what the media reports and I did not see any major contradictions in the testimony of the accused, so under the law the judge should acquit it. “
I agree with him having followed the case to the Court.
However, the pleadings to come on November 6 could reveal to us things that our observant eye did not catch and of the subtleties which could change the balance sheet.
- You can listen to M’s interview below.e Jean-Pierre Rancourt at Lawyers at the Bar QUB Radio: