Monday, 23 May 2016

Downfall of a famous radio show host: Ghomeshi (part 4)

If you read my first article with respect to the fascinating Ghomeshi trial that I put in my blog on May 16th 2016, you will know that Jian Ghomeshi was a very popular host of a CBC radio show called Q. When the big wigs in CBC saw a picture of a woman who had been severely beaten by Ghomeshi, they fired him. It wasn’t long before other women began complaining about Ghomeshi physically assaulting them also. Then in 2016, he was facing these women in a criminal court. In the article I published on May 16th, it is about what the trial judge had to say in his decision about one of the complainants with respect to her testimony. In the article I published on May 18th, it is about what the trial judge had to say in his decision about the second of the complainants with respect to her testimony. In the article I published on May 20th it is about the third complainant and what the judge had to say about her testimony. If you haven’t read either of those articles that I wrote about Ghomeshi and his complainants testifying against him, I urge you to do so before you begin reading this final article.

Before proceeding further into this article, I will briefly tell you of my background in law. I began representing clients in criminal courts in 1964.  My final case was in 2006. I represented clients in 12 cities in the province of Ontario. In 1969, I was the chairman of a task force that was to report its findings to the attorney general of Ontario. Its members included three members of the Ontario Legislature, three judges, three law professors, three lawyers and the chairman of the Law Reform Commission of Ontario. In my fifteen speeches I gave at United Nations Congresses in Europe, Africa, South America and Asia, I gave two speeches on criminal law—International Criminal Code and The Extradition of Material Witnesses. I also was one of the speakers at a law conference in Canada. Further, I taught law students how to prepare their cases and how to research law. This doesn‘t make me an expert in criminal law but I am knowledgeable in that aspect of law. 

When I am quoting the trial judge, I will encompass his statements with quotation marks followed by the word Unquote.  The other statements will be my own commentary.

And now my dear readers; sit back and enjoy this article as I tell you about the judge’s decision and what followed after that along with my own commentary. 

The framework of determinations in trials

The fundamental framework of making a determination in a criminal trial is often left significantly abbreviated in judge alone trials. In this Ghomeshi case, however, it is important to state this framework clearly as it plays the central role in the determination of this matter.

The Presumption of Innocence

The primary and overarching principle in every criminal trial is the presumption of innocence. This is the most fundamental principle of our criminal justice system. It is essential to understand that this presumption of innocence is not a favour or charity extended to the accused in criminal cases. To be presumed innocent until proven guilty by the evidence presented in a court of law, is the fundamental right of every person accused of criminal conduct.

Proof Beyond a Reasonable Doubt

 Interwoven with the presumption of innocence is the standard of proof required to displace that presumption. To secure a conviction in a criminal case, the Crown (prosecutor) must establish each essential element of the charge against the accused to a point of "proof beyond reasonable doubt". This standard of proof is very exacting. It is a standard far beyond the civil threshold of proof on a balance of probabilities.

The law recognizes a spectrum of degrees of proof. The police lay charges on the basis of "reasonable grounds to believe" that an offence has been committed. Prosecutions only proceed to trial if the case meets the Crown’s screening standard of there being "a reasonable prospect of conviction". In civil litigation, a plaintiff need only establish their case on a "balance of probabilities”. However to support a conviction in a criminal case, the strength of evidence must go much farther and establish the Crown’s case to a point of proof beyond a reasonable doubt. This is not a standard of absolute or scientific certainty, but it is a standard that certainly approaches that. Anything less entitles an accused to the full benefit of the presumption of innocence and a dismissal of the charge.

The expression proof "beyond a reasonable doubt" has no precise definition, but it is well understood. This is the definitive guide for criminal trial courts in Canada. 
The term "beyond a reasonable doubt" has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.

It's rarely possible to prove anything with absolute certainty. For this reason, the burden of proof on the crown is only to prove guilt beyond a reasonable doubt. When one speaks of reasonable doubt, the use of the words in their ordinary natural meaning is not as a legal term having some special connotation. A reasonable doubt is an honest and a fair doubt based upon reason and common sense. It's a real doubt that is not an imaginary or frivolous doubt which might be conceived by a juror or judge to avoid the juror or judge’s plain duty.

Even if a judge believes the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances the judge must give the benefit of the doubt to the accused and acquit because the Crown has failed to prove the existence of the guilt of the accused beyond a reasonable doubt.

  On the other hand the judge must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.

In short if, based upon the evidence before the court, the judge is sure that the accused committed the offence, the judge should convict since this demonstrates that the judge is convinced of the accused’s guilt beyond a reasonable doubt.

Historical Nature of the three Complaints against Ghomeshi

The allegations before the Court in this particular case are legally referred to as "historical complaints" in the sense that they are complaints made currently with respect to events that occurred many years ago. The courts recognize that trials of long past events can raise particular challenges due to the passage of time. Memories tend to fade, and time tends to erode the quality and availability of evidence.

Each of the complainants in this case pointed to certain aspects of the publicity surrounding Ghomeshi's very public termination from the CBC in 2014 as the trigger for coming forward with their complaints more than a decade after the fact. The law is clear: 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. Each complainant articulated her own very valid reasons for not coming forward at the time of the assaults by Ghomeshi. The law also recognizes that there should be nothing presumptively suspect in incremental disclosure of sexual assaults or abuse. Each case must be assessed individually in light of its own unique set of circumstances.

Each complainant was aware of Ghomeshi and his celebrity status prior to meeting him. Each was a fan of his to some greater or lesser extent. Each of the complainants had some involvement in the arts and entertainment world, which brought them into contact with Ghomeshi. One of them was an event catering waiter, another was an actress and the third was a dancer. Each complainant accused him of a certain act of violence in the context of a brief dating relationship. Each one chose not to make a complaint to the authorities until years after those events occurred. Each one of the complainants came forward in 2014 in the wake of, or in the midst of, the extensive publicity surrounding the very public termination of Ghomeshi from the CBC. Each complainant chose to come forward to the media first and then subsequently they each gave sworn video-recorded statements to the police. One is force to wonder why they chose to go to the media in the first place. Were they seeking fame or were they supporting other complainants?

There is no legal bar to convicting on the uncorroborated evidence of a single witness. However, one of the challenges for the prosecution in this particular case was that the allegations against Ghomeshi were supported by nothing in addition to the complainant’s word. There was no other evidence to look to determine the truth. There was no tangible evidence. There was no DNA. There was no "smoking gun". There was only the sworn evidence of each complainant, standing on its own, to be measured against a very exacting standard of proof. This highlights the importance of the assessment of the credibility and the reliability and the overall quality, of their individual testimonies. 

During the trial, each complainant recounted her experience with Ghomeshi and was then subjected to extensive and revealing cross-examination. The cross-examination dramatically demonstrated 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 the judge hearing the evidence.

 Ultimately the judge’s assessment of each of the counts against the accused turned entirely on the assessment of the reliability and credibility of the complainants, when measured against the Crown’s burden of proof. With respect to each charge, the only necessary determination was simply this: Does the evidence have sufficient quality and force to establish the accused’s guilt beyond a reasonable doubt?

Ghomeshi did not testify and he called no evidence in defence of the allegations. One of the most important organizing principles in our criminal law is the right of an accused not to be conscripted into building a case against oneself. Every accused facing criminal allegations is entitled to plead not guilty and put the Crown to the strict proof of the charges. An accused has every right to remain silent, call no evidence and seek an acquittal on the basis that the Crown’s case fails to establish his guilt beyond a reasonable doubt. No adverse inference arises from his decision to do so in this case or any other case. The judge said in his decision;

As I have stated more than once, the courts must be very cautious in assessing the evidence of complainants in sexual assault and abuse cases. Courts must guard against applying false stereotypes concerning the expected conduct of complainants. I have a firm understanding that the reasonableness of reactive human behaviour in the dynamics of a relationship can be variable and unpredictable. However, the twists and turns of the complainants’ evidence in this trial, illustrate the 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.” Unquote

“Each complainant in this case engaged in conduct regarding Mr. Ghomeshi, after the fact, which seems out of harmony with the assaultive behaviour ascribed to him. In many instances, their conduct and comments were even inconsistent with the level of animus (their intentions) exhibited by each of them, both at the time and then years later. In a case that is entirely dependent on the reliability of their evidence standing alone, these are factors that cause me considerable difficulty when asked to accept their evidence at full value.” Unquote

  Each complainant was confronted with a volume of evidence that was contrary to their prior sworn statements and their evidence in-chief. Each complainant demonstrated, to some degree, a willingness to ignore their oath to tell the truth on more than one occasion. It is this aspect of their evidence that is most troubling to the Court.” Unquote

“The success of this prosecution depended entirely on the Court being able to accept each complainant as a sincere, honest and accurate witness. Each complainant was revealed at trial to be lacking in these important attributes. The evidence of each complainant suffered not just from inconsistencies and questionable behaviour, but was tainted by outright deception.” Unquote

“The harsh reality is that once witnesses has been shown to be deceptive and manipulative in giving their evidence, the witnesses can no longer expect the Court to consider them to be a trusted source of the truth. I am forced to conclude that it is impossible for the Court to have sufficient faith in the reliability or sincerity of these complainants. Put simply, the volume of serious deficiencies in their evidence leaves the Court with a reasonable doubt.” Unquote  

 “My conclusion that the evidence in this case raises a reasonable doubt 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. In these proceedings the bedrock foundation of the Crown’s case is tainted and incapable of supporting any clear determination of the truth. I have no hesitation in concluding that the quality of the evidence in this case is incapable of displacing the presumption of innocence. The evidence fails to prove the allegations beyond a reasonable doubt.” Unquote

“I find Mr. Ghomeshi not guilty on all of these charges and they will be noted as dismissed.” Unquote

I wish to refer you to part of a statement that the judge said in his decision. He said;

“……a reasonable doubt is not the same as deciding in any positive way that these events never happened.” Unquote

 There is certainly no doubt in my mind that Ghomeshi really did physically assault the three women in the manner they said he did while giving their  testimony in court.  I am convinced in my mind that the judge also felt the same way.

Everyone including the judge would have been mindful of the fact that in 2013, Ghomeshi was fired after his superiors in the CBC were shown pictures of a woman who was beaten by Ghomeshi.

After the trial of Ghomeshi was over, there was to be another trial in June. A fourth complainant was to testify against him. It was agreed by all the parties to that proposed trial that Ghomeshi would sign a peace bond instead of facing another trial.

The 48-year-old Ghomeshi apologized to the complainant, Kathryn Borel, who waived the publication ban on her name, saying that he regrets that his actions made her feel uncomfortable in the work place in the CBC. The court heard that Ghomeshi has been seeing a therapist for 18 months and will continue to do so. 

In his apology, Ghomeshi explicitly acknowledged that a power imbalance existed at the CBC between the stars and the many staffers who work there on contract. Katheryn Borel, the former employee of CBC Radio said after Ghomeshi apologized to her in court; “Up until recently, I didn’t even internalize that what he was doing to my body was sexual assault because, when I went to the CBC for help, what I received in return was a directive that yes, he could do this and yes, it was my job to let him.”                         

The CBC provided a statement reaffirming what it said in 2015: “We are and remain committed to creating an environment in which safety and respect for one another is a fundamental attribute. To the extent that standard was not met, we offered a sincere and unqualified apology to all our employees and to Canadians who have a right to expect a higher standard from their public broadcaster.”

There have been many instances in courts where the defendants in criminal trials have been found not guilty even though the evidence of their guilt is undisputable. Recently in Toronto, a defendant who was obviously guilty of possessing illicit drugs on his person had his case dismissed because the officer that arrested him initially had no legal or justifiable reason for stopping and searching him in the first place.  In Florida, many years ago, an officer stopped a black man who was driving his car and searched the inside of his car and the trunk of his car.  Inside the trunk of the car was the body of a dead woman. The charge against him was dismissed. The judge said that if he permitted the evidence of the officer to be legitimized, it would bring the court into disrepute since the rights of the black man and anyone else were paramount in that he and everyone else had the right not to be stopped and searched arbitrarily by a police officer.

Justice Horkins in the Ghomeshi case obviously was aware of the dangers of convicting an accused on testimony of witnesses or complainants that are either highly suspicious or are outright lies. To do so would bring disrepute on him and on Canadian justice.


I will be in Cuba from today until May 31st. On June 1st, I will publish a new article in my blog. The subject will be, Guns in the hands of toddlers and youngsters

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