Tagged: R v Ghomeshi

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.
  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.
  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.
  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.
  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.
  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.
  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.
  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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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.