In the end, not a tough call at all.
There’s a reason why the word ‘reliability’ was used 13 times during the judge’s decision
When his fate was clear, Jian Ghomeshi did not jump from his chair.
He did not pump his fist with relief or euphoria, though it’s likely both were surging through his blood. Flanked by his lawyers, Marie Henein and Danielle Robitaille, Ghomeshi stuck with the same blank expression as throughout his trial for sexual assault, the faraway gaze of a man having an out-of-body experience.
It was just before 11:30 a.m., inside a packed Courtroom 125 at Old City Hall, when Judge William B. Horkins read the final sentence of his judgment: “I find Mr. Ghomeshi not guilty on all of these charges and they will be noted as dismissed.” Before you could say “Q,” Regina v. Jian Ghomeshi was over. Horkins had six weeks to arrive at this conclusion, or roughly the same amount of time William Faulkner needed to pen As I Lay Dying. Given the clear-cut decision, it’s possible the judge knocked this off in a weekend and spent his remaining time building a panic room, should his home soon be encircled by the same protesters who converged at the steps of Old City Hall to chant, “We believe survivors!” This was the tension throughout the trial. Inside the courtroom where the evidence was heard, where the defence demolished all three complainants in cross-examination, accusing each of lying about details big and small, there was never a blanket guarantee on belief.
There was no blind faith. There was only a rigorous testing of truth.
Yes, we should do everything possible to ensure abuse survivors feel safe to come forward, to seek justice. But as Horkins noted: “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.”
As these words tumbled from his lips, I suspect entire colonies on social media exploded in a mushroom cloud of outrage. But in the context of a criminal conviction — in which the strength of evidence must “establish the Crown’s case to a point of proof beyond a reasonable doubt” — this case was always a shaky pedestal upon which to place any loftier discussions of sexual assault.
There’s no doubt Ghomeshi benefited from having access to a legal Dream Team. The only way Henein could have created more reasonable doubt is if she introduced as evidence a birth certificate belonging to her client’s previously unknown twin brother. This trial was such a mismatch, such a showcase of her theatrical prowess, I’m tempted to move the funds in my daughters’ RESP into an account titled, “Money for Marie.” You know, just in case one of them gets into trouble down the line.
The high-priced sleuthing by the defence, the painstaking comparative analysis of every word the complainants ever uttered about the accused in statements to authorities and the media, paid off for Ghomeshi. So did his apparent status as pack rat keeper of personal correspondence.
If you sent him a Valentine in Grade 1, chances are he still has it.
But even with all of this, the Crown’s insurmountable hurdle was the complainants.
Horkins read his 10,600-plus-word decision verbatim, pausing only to sip from a glass of ice water four times. His soliloquy triggered the anticipatory hush of a commencement speech, though with only one person in the courtroom and two overflow rooms still waiting to hear if he graduates.
Then Horkins got to the heart of the charges. He dissected the evidence in meticulous detail, applying both case law and common sense. Without exception, he sided with the arguments presented by the defence.
There’s a reason he uses the word “reliability” 13 times. The word “credibility” shows up another 10 times. This was the subtext of everything Henein argued during trial. Near the end of his introduction, tellingly, both words are used in one setup paragraph: “(the) judgment of this Court depends entirely on an assessment of the credibility and the reliability of each complainant as a witness.”
In other words, whatever happened between Ghomeshi and the complainants more than a decade ago has left no physical or forensic evidence. No one else was present for the alleged abuse. Since Ghomeshi never testified, this wasn’t even a He Said/She Said.
This was a She Said/She Was Not Forthright. Repeat. Repeat again.
That’s why this cause célèbre was always such a shaky pedestal.
That’s why no one should be chanting for these complainants.
A lack of veracity, by honest error or wilful deceit, may never emerge in the court of public opinion. That arena is not subject to a rigorous testing of truth. But in a criminal court, in which the accused is presumed innocent and the truth takes priority over any desire to believe, the number of times the complainants were caught changing, adding, deleting, tweaking or distancing themselves from previous assertions — including those made under oath — was truly stunning.
Statements were coming in to authorities and the Crown after the trial started.
All of this led to a decision that was much easier than it probably seemed.
“Even if you believe the accused is probably guilty or likely guilty, that is not sufficient,” said Horkins, near the end. “In those circumstances you must give the benefit of the doubt to the accused and acquit, because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.” vmenon@thestar.ca