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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Summary of the Jian Ghomeshi Judgment

Justice William Horkins’ recent decision in the high-profile sexual assault and choking case of R. v. Ghomeshi is well worth a read. It is available on the internet. The Supreme Court of Canada requires that all judges give reasons for their decisions that are clear and comprehensible to the litigants, the public and to any potential appeal courts. As I said in my post at effervescentbubble.ca, I consider Justice Horkins’ decision masterful, and a model of its kind. He is clear in his analysis, comprehensive in his review of all the relevant issues, and unusually eloquent in his language.

He comes down unusually hard on the complainants in this particular case, not because of their after-the-fact actions with Mr. Ghomeshi, but because they were shown as dishonest and manipulative in hiding this evidence from the police, Crown counsel, and the Court. In my view, R. v Ghomeshi is a case study in what complainants in these types of cases should NOT do before and at trial. Advocates who miss that message do women no favours.

Anyone wanting to know how the criminal justice system works will learn much from reviewing this decision. What follows is a summary of Justice Horkins decision.

  • An outline of the charges (paragraphs 1-4)
  • The elements of the offences of “sexual assault” and of “choking with intent to overcome resistance” (paras 5-7)
  • The background context of the case (paras 8-11). Justice Horkins notes that as each charge is based entirely on the evidence of each complainant, his judgment depends on an assessment of the credibility and reliability of each complainant as a witness.
  • The complaints of L.R. as related in her evidence-in-chief (paras 12-24), one describing his grabbing her hair while they were kissing in his car, the second at his home with him suddenly grabbing her hair, punching her in the head several times, and pulling her to her knees, “such that she felt like walking into a pole or hitting her head on the pavement,” and she “thought she might pass out.” She went home in a cab and she said she never saw him again after this incident.
  • Justice Horkins then sets out several areas of concern in L.R.’s evidence, identified in cross-examination (paras 26-44):
    • a) “evolving facts” which changed from her three media interviews, to the police statement, and then at trial
    • b) her changed position on whether she was wearing hair extensions, which she falsely said she had disclosed to the crown
    • c) her inconsistencies on whether he smashed her head against the car window, and her conclusion that she was simply “throwing thoughts” at the investigators
    • d) changing renditions of what happened at the house
    • e) her “clear memory” of the bright yellow car he drove, which Justice Horkins found “is simply wrong.” Justice Horkins writes (para 36) that “this demonstrably false memory weighs in the balance against the general reliability of [her] evidence as a whole.”
    • f) Although “firm in her evidence that… she chose never to have any further contact with Mr. Ghomeshi,” she later sent him two flirtatious emails which she never disclosed to the police or the Crown. (paras 37-44). As Justice Horkins wrote (para 43), “the expectation of how a victim of abuse will, or should, be expected to behave must not be assessed on the basis of stereotypical models.” Nevertheless, he found her behaviour “at the very least, odd.” Justice Horkins concluded that the “… inconsistencies, and [her]… deceptive conduct…as a witness willing to withhold relevant information from the police… the Crown and… the Court…[made] it clear that she deliberately breached her oath to tell the truth” and that “her value as a reliable witness is diminished accordingly.”
  • The complaint of Lucy DeCoutere (paras 45-55) sets out the history of interactions between her and Mr. Ghomeshi and the “out of the blue… kissing… and choking and slapping her in the face,” which occurred at his home one weekend.
  • Again, Justice Horkins discussed the problems in her evidence. (paras 56-94):
    • a) He describes her inconsistencies in recounting the alleged assault in many media interviews, her police statement and at trial, all of which “suggests a degree of carelessness with the truth that diminishes the general reliability of the witness.”
    • b) Her late disclosure of material information to the police and the Crown “despite having the assistance of her own counsel” and “a well-established… line of communication with the investigating officers and Crown counsel” in the months leading up to the trial
    • c) Her other evidence of a continued relationship with Mr. Ghomeshi which was only revealed in cross-examination led to Justice Horkins’ concluding that, despite direct questions from the police and giving a statement to them after a caution and under oath, she had engaged in “a manipulative course of conduct,” “the suppression of evidence,” and “deceptions maintained under oath” which “drive my concerns about the reliability of this witness.”
    • d) Sending flowers and a thank you note to Mr. Ghomeshi after the alleged choking “might be part of her effort to normalize the situation… (whether unusual or not) this was very clearly relevant and material information in the context of a sexual assault allegation” and “the deliberate withholding of the information reflects very poorly on… [her] trustworthiness as a witness.”
    • e) Her multiple emails sent to Ghomeshi and a hand-written love letter, five days after the alleged choking, showed that her testimony in court (which she gave under oath as her “guarantee” that she had no romantic feelings for Mr. Ghomeshi afterwards) was “simply not true” and was “out of harmony with her evidence-in-chief and her multiple pre-trial statements to the media and the police.” Justice Horkins questioned whether her conduct in suppressing evidence may have motivated by “her role as an advocate for the cause of victims of sexual violence.”
  • The evidence of Ms. Dunsworth that Lucy DeCoutere spoke to her about the choking incident about ten years ago was admitted to offset any implied allegation of “recent fabrication.” This evidence addressed a concern Justice Horkins had, and was not one raised by defence counsel. (paras 95-99)
  • The complaint of S.D. tells of them kissing on a park bench after a dinner date when “she felt his hands and his teeth on and around her neck… [which was] rough… unwelcome… ’not right’… and… caused her difficulty in breathing.’ She said nothing about it at the time and socialized with him two or three times thereafter. (paras 100-104)
  • Assessing her testimony (paras 106-119), Justice Horkins observed that, although “some lack of precision is to be expected of any report of conduct from over a decade earlier… it is reasonable to expect that a true account… will not vary too dramatically from time to time in the telling” such that there is “sufficient clarity in the evidence to allow a confident acceptance of the essential facts” (the standard of proof in a criminal trial). Her evidence was too imprecise to meet that standard (e.g.: para 106). The judge was also concerned about possible collusion with Ms. DeCoutere (paras 107-110). He also noted that she met with Crown counsel five times in the year prior to the trial, was reminded each time of the need to be completely honest and accurate, and only at trial did she reveal she had a sexual encounter with Mr. Ghomeshi at her own home, after the incident. Justice Horkins wrote that her “decision to suppress this information until the last minute, prior to trial, greatly undermined the Court’s confidence in her evidence. In assessing the credibility of a witness, the active suppression of the truth will be as damaging to her reliability as a direct lie under oath.” (para 114). He went on to write, “I accept [defence lawyer, Marie] Ms. Henein’s characterization of this behaviour…. S.D. was clearly ‘playing chicken’ with the justice system. She was prepared to tell half the truth for as long as she thought she could get away with it.” (para 118)
  • In a key admonition to all witnesses (para 119), Justice Horkins writes that “S.D. offered an excuse for hiding this information… that this was her ‘first kick at the can,’ and that she did not know ‘how to navigate’ this sort of proceeding. He replies that ‘navigating’ this sort of proceeding is really quite simple: tell the truth, the whole truth and nothing but the truth.”
  • The Framework of his Analysis is stated clearly as “it plays the central role in the determination of this matter.” (para 120) It starts with the presumption of innocence (para 121), “which is the fundamental right of every person accused of criminal conduct.” Interwoven is the standard of “proof beyond a reasonable doubt” imposed on the Crown (paras 122-124), which is the highest standard of a spectrum of degrees of proof used in the legal system and is defined by the Supreme Court of Canada in R. v. Lifchus [1997] 3 S.C.R. 320. Horkins recognizes the challenges posed by the historical nature of the complaints and states the clear law that “there should be no presumptive adverse inference arising when a complainant in a sexual assault case fails to come forward at the time of the events.” Similarly, the law recognizes that “there should be nothing presumptively suspect in incremental disclosure of sexual assaults or abuse.” He notes that “each case must be assessed individually in light of its own unique… circumstances.” (paras 125 and 126) He indicates that similar fact evidence of propensity to commit a particular type of crime is generally inadmissible and that, in this case, the Crown had expressly agreed that each complaint must be determined on its own merits. (para 127)
  • Conclusions (paras 128-141) Although he notes the similarities between the three complaints, he indicates that he “very deliberately considered the evidence relating to each of the charges separately.” (paras 128-130) He says that there is “no legal bar to convicting on the uncorroborated evidence of a single witness….” (para 131) In this case, he found that “The cross-examination dramatically demonstrated that each complainant was less than full, frank and forthcoming in the information they provided to the media…the police… Crown counsel and… this Court.” (para 132) His role was to assess the reliability and credibility of the complainant, when measured against the Crown’s burden of proof, and to ask: Does the evidence have sufficient quality and force to establish the accused’s guilt beyond a reasonable doubt? (para 133). No adverse inference can arise from the decision of an accused to remain silent and put the Crown to the strict proof of the charges. (para 134) Courts must be “very cautious in assessing the evidence of complainants in sexual assault and abuse cases;” “must guard against applying false stereotypes concerning the expected conduct of complainants,” and “… need to be vigilant in avoiding the equally dangerous false assumption that sexual assault complainants are always truthful. Each individual and each unique factual scenario must be assessed according to their own particular circumstances.” (para 135)
  • The after-the-fact conduct of each complainant seems “out of harmony with the assaultive behaviour ascribed to him” and caused the judge “considerable difficulty when asked to accept their evidence at face value.” (para 136)
  • Most troubling to the Court was his finding that “each complainant demonstrated, to some degree, a willingness to ignore their oath to tell the truth on more than one occasion.” (para 137) The Court was unable “to accept each complainant as a sincere, honest and accurate witness“ because “the evidence of each complainant suffered not just from inconsistencies and questionable behaviour, but was tainted by outright deception.” (para 138) “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…. Put simply, the volume of serious deficiencies in the evidence leaves the Court with a reasonable doubt.” This conclusion “is not the same as deciding in any positive way that these events never happened. At the end of this trial, a reasonable doubt exists because it is impossible to determine, with any acceptable degree of certainty or comfort, what is true and what is false. The standard of proof in a criminal case requires sufficient clarity in the evidence to allow a confident acceptance of the essential facts.” Where “the bedrock foundation of the Crown’s case is tainted and incapable of supporting any clear determination of the truth… the evidence fails to prove the allegations beyond a reasonable doubt” and there will be a finding of not guilty on all charges. (paras 140-142)

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