Good day in court for defence,
Whatever else, the courtroom at Old City Hall, where the sex assault trial of Jian Ghomeshi ended Thursday, was generally a lousy place to be for a woman.
Everywhere you looked, there were women being caught in lies or omissions on the witness stand and then resorting to justifications for their evasive conduct taken straight from the therapist’s couch or latest self- help book; women being escorted in and out of the courtroom by protectors from the victim- witness office; women being soothed, IRL and online by their supporters, who took to labelling certain blogposts or tweets with “trigger warnings,” lest, God forbid, victims of sexual assault should accidentally wander onto a dangerous opinion or factual situation and be re- traumatized.
It was akin to being a member, by virtue of gender alone, of an over- delicate, slightly feeble- minded citizenry in need of perpetual deference and protection both.
In this mine- laden territory, Marie Henein and Danielle Robitaille, t he ferociously capable 1- 2 of Ghomeshi’s defence team, were always a source of comfort.
Never did they defend Ghomeshi by dragging out prior sexual conduct of the complainants ( except once, when with the consent of the Crown and permission of the court, they explored a mid- trial disclosure from the third complainant of a voluntary, consensual sexual contact with Ghomeshi after her purported assault). Never did they beat up the complainants, as the school of the uninformed had widely predicted they would.
They were comforting because they are women, because they were so brilliantly and obviously seeking neither favour, nor break nor quarter.
But Thursday, as they divvied up the closing arguments on behalf of their client, they were more than that.
Robitaille, in charge of reviewing the litany of inconsistencies that had come from the complainants’ own mouths, reminded Ontario Court Judge Bill Horkins of their collective animus to Ghomeshi (as demonstrated in particular by some of the preposterous 5,000- plus messages between Lucy DeCoutere and the third complainant) and of the various ways they misled Toronto Police and why the judge should have “very grave concerns” about relying on their testimony.
Henein reviewed the relevant law for the judge, but in the process, provided a stinging feminist rebuttal to the naysayers who argue that victims shouldn’t be subjected to the rigorous trial process, and a rather lovely paean to the truthseeking function of the criminal trial.
First, she pointed out the obvious: In addition to four counts of sexual assault upon the three women, Ghomeshi is also charged with choking DeCoutere, but the charge means he must have choked her to overcome her resistance to his committing another offence, and that he choked her to render her “insensible, unconscious or incapable of resistance,” in the language of the Criminal Code.
Those elements, even by DeCoutere’s testimony, aren’t met, she said.
What was extraordinary about this case, Henein said, was that “all three complainants withheld information from the police and from the Crown, and most importantly, from the court in testimony.”
Only at the 11th hour, on the eve of testifying, was the truth told — “only when there was a concern they’d be confronted with objective evidence …
“The truth was not going to be told at trial,” Henein said. “Were it not discoverable independently, we were not going to hear the truth.”
There was the relevance of the complainants’ conduct, she said, but as important, the relevance of the lies they told under oath.
“We know,” she said, “that in certain circumstances, women will continue to interact with people who abuse them. But that’s not what’s at play in this case.”
These complainants weren’t in long- term relationships with Ghomeshi; he had no hold on them; they depended on him for nothing, and there’s no expert witness in the world, she said, “who would come here and say that perjury is indicative of trauma.”
The trio’s collective “disregard for the obligation to tell the truth is meaningful,” Henein said.
The oath is neither complicated nor hard to understand, but the complainants determined “to decide for themselves what was relevant, to only tell half-truths, to withhold information … This courtroom should not be a game of chicken.”
Quoting a dissent by “one of the greatest feminist jurists” in the country, in which the former Supreme Court Judge Claire L’Heureux-Dubé said “One cannot over- emphasize the commitment of courts of justice to the ascertainment of the truth,” Henein said “no witness enjoys a presumption of truthfulness,” whether police officer or victim of crime.
The evidence against Ghomeshi, she said, falls “so far short of proving anything beyond a reasonable doubt, is so riddled with inconsistencies, it cannot prove anything.”
It was, at last, a very good day to be a woman in Courtroom No. 125.
THIS COURTROOM SHOULD NOT BE A GAME OF CHICKEN.