Ten Take-Aways from the Jian Ghomeshi Affair

(This article is an expanded version of one originally published May 17, 2016 by Marion Lane on The Effervescent Bubble)

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, note 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. 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. The crown attorney has a duty to discuss a proposed resolution with the complainant.

4. A Peace Bond is often used to resolve criminal charges where the accused has no earlier criminal record. Such a resolution is usually a win-win for everyone. An accused agrees to have no contact with the complainant, 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 a first interview and/or maintains deceptions under oath will undermine his or her credibility at trial. Complainants lack the ability or knowledge to know 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) The same advice could well apply to ‘navigating’ the criminal justice system, generally.

7. Judges are not swayed by street demonstrations, chanting crowds, or 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, the law, and how the legal system works. Written decisions of the Ontario Court of Justice can be found at the website of the court.

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 place or a public trust may add to the risk.

10. The management of the CBC is shameful and owes the public an apology, and Kathryn Borel, probably much more. The legal principle that employers must ensure a safe environment, free of oppression, for all their employees, was established many years ago. Employers have long had a duty to respond to complaints of sexual harassment and do something about them right away. Failure to do so is 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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