Ten Take-Aways from the Jian Ghomeshi Affair

  1. The offence of sexual assault is broadly defined. It extends to any non-consensual touching of any part of the body which interferes with the sexual integrity of the individual. The genital area, the breasts, the mouth, the buttocks are presumed to be sexual, but any violence to other areas of the body could come within the definition if the touching occurs in the context of sexual activity.
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  2. What used to be called rape (non-consensual sexual intercourse) is only the ‘most serious’ on the spectrum of sexual assaults. Although not arising in the Ghomeshi case, it should be noted that even consensual intercourse may become ‘sexual assault’ if one party unilaterally removes a condom, or engages in the activity without informing his/her partner that he or she is HIV positive.
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  3. Reporting a sexual assault does not necessarily mean a complainant will testify in court. Most criminal charges are resolved by plea negotiations when the crown is required to consult with the complainant. Defendants may agree to plead to some lesser offence, or take responsibility for some measure of harm, without admitting guilt on the charge before the court.
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  4. Crown attorneys frequently resolve criminal charges by using a peace bond. Such a resolution is usually a win-win for everyone. An accused who has no prior criminal record agrees to no contact, avoids the costs of a trial (to his or her pocketbook, psyche and reputation), has no criminal record, and can get on with his or her life. The complainant avoids the need to testify and face cross-examination in court. He or she will get the protection of a court order against any contact from the accused for one year, and may get the satisfaction of a public apology. The crown attorney resolves a case which may have been difficult to prove and frees up scarce crown resources. The court vacates scheduled trial days which can be allocated to other trials and help reduce delay.
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  5. ‘Believing complainants’ is only a useful concept for the purpose of laying charges. A complainant who suppresses evidence from the police in an initial interview and/or maintains deceptions under oath will undermine his or her credibility at trial. Complainants lack the ability or knowledge to determine what information is relevant. Those are decisions for the police and the crown attorney.
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  6. “Navigating… (a sexual assault proceeding) is really quite simple: tell the truth, the whole truth and nothing but the truth.” (Justice Horkins in R. v. Ghomeshi, March 2016, para 119)
  7. Judges are not swayed by street demonstrations, chanting crowds, and media publicity. They base their decisions only on the evidence they hear in court. Judges use their written reasons to educate the litigants, the public and the media about how and why they came to the decisions they did.
     
  8. Publication of written judicial decisions in full (through links on platforms such as cbc.ca) can be a powerful tool for public legal education about individual cases, about the law, and about how the legal system works.
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  9. The presumption of innocence exists only in criminal courts. The court of public opinion is alive and well, and ready to convict at the slightest opportunity. Courts may save an accused from jail and a criminal record. Public opinion is harsh and unforgiving. Celebrity, power, high position or a public trust adds to the risk.
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  10. The management of our beloved CBC is shameful and owes the public an apology, and Kathryn Borel, probably much more. It’s been many years since the legal principle was established that employers must ensure a safe environment, free of oppression, for all their employees. Employers have long had a duty to respond to complaints of sexual harassment and do something about them right away. Failure to do so has been seen as condoning the impugned behaviour. Where has the CBC been all this time? Is the Ghomeshi affair at the CBC a wake up call for other employers tone deaf to the issue? If not, it should be.

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2 comments

  1. Pingback: Ten Take-Aways from the Jian Ghomeshi Affair | Re-view From the Bench
  2. Julia

    Generally an excellent column Marion. But I do not wholly agree with your statement that complainants do not know what is relevant. It is true to some extent, especially in the context of complex legal points. But the Ghomeshi complainants should have known, and likely did know, that their subsequent engagement with Ghomeshi was relevant. They lied about it because they were embarrassed about what they had done and their lying rightly scuppered them.

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