The Jian Ghomeshi Judgment

Few court cases have so galvanized the nation as did the February trial of Jian Ghomeshi on four counts of sexual assault and one of choking. His celebrity, the sexual nature of the charges, the ardent advocacy of sexual assault survivor support groups, and the renewed public discussion about the nature and prevalence of sexual assault guaranteed that all eyes were focused on Courtroom 125 of the Old City Hall in Toronto. On Thursday, Mr Justice Horkins of the Ontario Court of Justice released his decision acquitting Ghomeshi of all the charges.

Within minutes, the CBC posted a link to a complete text of the judge’s decision. To my knowledge, the CBC’s internet posting of a complete legal decision is unprecedented. It is a signally important contribution to national public legal education which shows the value of the CBC and should be applauded.

At a concise 142 paragraphs over 24 plus pages, it is a masterful decision, a model of its kind. Totally readable by everyone, it does precisely what the Supreme Court of Canada has told judges they must do in rendering judgment: provide reasons for their decisions which are understandable to the litigants and to the public.

If you want to know how the criminal justice system works (and how it should work), I commend the decision to you to read in full.

I have prepared a summary of the decision in another post at reviewfromthebench.ca. You can use that as a guide to reading the judgment.

I am satisfied that there will be no appeal of Justice Horkins’ decision. Nor should there be. Justice Horkins has reviewed the evidence and applied the law in a manner totally sensitive to all the issues. In this case, two of the three complainants had their own independent counsel prior to the trial. Even with this added support, Justice Horkins found “that each complainant was less than full, frank and forthcoming in the information they provided to the media, to the police, to Crown counsel and to this Court.” In these circumstances, when proof of the charges depended solely on the credibility of each complainant, how could there be other than an acquittal on all charges?

In my view, the case of R. v Ghomeshi is an excellent primer on how complainants in sexual assault trials (indeed, witnesses in all criminal proceedings) should NOT conduct themselves both before and at trial. It was not the after-the-fact actions of the complainants with the accused, per se, that were the problem. “Most troubling” was that “each complainant demonstrated, to some degree, a willingness to ignore their oath to tell the truth… .” And, to quote Justice Horkins, “the harsh reality is that once a witness has been shown to be deceptive and manipulative in giving their evidence, that witness can no longer expect the Court to consider them to be a trusted source of the truth.”

As Justice Horkins writes, “ ‘Navigating’ [this criminal justice proceeding] is really quite simple: tell the truth, the whole truth and nothing but the truth.” Complainants, like all witnesses, must do so from the moment they report their complaint to the police, right through to the trial. This means answering fully direct questions put to them by the police in initial investigations, not suppressing obviously relevant evidence because it may be embarrassing or detract from their “role as an advocate for the cause… ,” and not fraternizing with other witnesses so that their evidence might be tainted by collusion.

If I remember correctly, these three complainants were considered the strongest of many that came to the police after then Police Chief Bill Blair made a plea to the community in November 2014 for any instances of assaultive behaviour by Mr. Ghomeshi.

It strikes me that, had these complainants been forthright with the police at the outset, Crown counsel in reviewing the fruits of the police investigation might well have exercised their discretion not to proceed with the charges because there was “no prospect of conviction.” As officers of the court, that is the role of the Crown. It is a responsibility they routinely exercise in day-to-day criminal proceedings.

On the other hand, given the public scandal and the force of public opinion at the time, maybe the charges would have gone ahead anyway. Had Crown counsel known of all the late disclosure in a timely fashion, however, it is certain they would have conducted the trial very differently, the complainants would have been better prepared for cross-examination, and the course of the trial would have been very different indeed.

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3 comments

  1. Sandy

    Thank you Marion. I was hoping to see a well-reasoned comment like this from you to counter some of the hash tag hysteria out there.

  2. Pingback: Summary of the Jian Ghomeshi Judgment | Re-view From the Bench

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