Ghomeshi’s firing spoke volumes, whatever the outcome of his trial
With Jian Ghomeshi’s criminal case just in its third day, there is no guessing what the outcome will be.
However, despite the public’s and media’s conflation of Ghomeshi’s firing and the criminal case against him, it is important to note that the two are unrelated. The case now before the court involves accusations of sexual misconduct by three women from more than 10 years ago, not from those women who spoke out at CBC after Ghomeshi showed his employer tapes of himself involved in bondage and beating during sexual activity.
Unlike in employment law where the question is whether an employee “more likely than not” misconducted him or herself sufficiently to be cause for their discharge, in a criminal case technical defences come to play, including whether the misconduct fits the statutory category and the possibility of reasonable doubt.
Ghomeshi could win this case for any of several reasons: because the court concludes the accusers’ memories have faded in the years since their encounter; that some entirely technical defence prevails; that he misconducted himself but not in a manner precisely matching the particular Criminal Code provisions he is charged with; or that, even though he may have committed the offences for which he was charged, there is at least reasonable doubt.
Any of these would result in his acquittal. But an acquittal would not necessarily mean Ghomeshi is innocent.
Nor would it necessarily mean the CBC did not have good grounds to fire him.
Ghomeshi was smart to expedite this trial, although his hoped for outcome of rehabilitating his reputation is entirely illusory.
There has been no word of an arbitration case against the CBC contesting Ghomeshi’s dismissal from CBC.
I frankly doubt we will ever see one. If it proceeded, he would almost certainly fail. Sexual harassment is cause for discharge as is the type of abuse for which he has been charged.
But CBC would not have to go even that far.
It could win an employment law case simply by proving Ghomeshi’s behaviour was so antithetical to its brand that his continued employment became untenable.
Ghomeshi’s best argument would be that CBC management knew about his misconduct and condoned it. Although such an inquiry might provide the evidence CBC’s management- ordered investigation never exposed, such a finding could be the death of the public broadcaster and I can’t imagine its union taking it on.
I am concerned at the potential consequences if Ghomeshi were to be criminally acquitted.
The publicity surrounding his firing caused a sea change in Canadians’ view of sexual harassment in the workplace and prompted human resource departments across the country to dust off or reinvent their harassment guidelines. Since the story broke, I have seen dramatically more harassment cases than ever before.
An acquittal could have a concomitant ominous chilling effect.
If his lawyer sufficiently embarrasses the accusers by suggesting they are lying, or through salacious revelations as to their sexual history, others will be less prepared to come forward with sexual harassment allegations. It would be unfortunate if victims of harassment mistaken what is occurring in this courtroom with the more informal process of making sexual harassment claims to one’s employer.
In the workplace, management investigates and makes disciplinary decisions accordingly.
Never mistake that for what is occurring this month in a Toronto courtroom.