No justice for anyone with Ghomeshi verdict

For whom is the justice system just?

After Ontario Court of Justice Judge William Horkins delivered a not-guilty verdict in Jian Ghomeshi’s sexual assault trial, it’s a question that lingers: Is this a result that provides “justice” for anyone? If so, who? Was anything at all resolved to anyone’s satisfaction by that trial? Anything at all accomplished by it?

I suppose it inspired still more fear and loathing of lawyer Marie Henein — a set of emotions, perhaps, it is useful for a defence attorney to be known for provoking.

But beyond Henein, it is hard to see anyone who was delivered a victory here — or who might feel justice was delivered to them. Let’s start with Ghomeshi himself. If he is indeed innocent of the things he stood accused of — and the many related offences he is publicly reported to have been accused of outside this proceeding — then surely the not-guilty verdict is good news for him?

Yes, but he has lost much of his life, his reputation, his job. He is a public figure whose name has not been publicly cleared, far from it. “My conclusion that the evidence in this case raised a reasonable doubt is not the same as deciding in any positive way that these events never happened,” Judge Horkins said in his decision.

And certainly many people — I would guess a majority of the general public — will feel more than a reasonable doubt about his innocence, and will treat him accordingly. Ghomeshi has avoided jail time, but for all those accused of crimes, the process is a form a punishment in itself, and Ghomeshi will continue to be punished socially and professionally for the rest of his life. If you believe him to be innocent, that result is certainly not just.

And if the opposite is true, and he is guilty even though it cannot be — or was not, in this case — proven beyond a reasonable doubt, what is this result? A compounding of the injuries of the accusers. If, as they alleged on the stand, he hurt and traumatized them, then here they were retraumatized, to no effect. Or worse, to injurious effect: They were humiliated and discredited publicly, asked to retell and debate some of the most intimate, embarrassing and terrible moments of their pasts. They too, have been punished for their part in this, in a way. Not that they ever had any prospect of being rewarded: The resolution of a criminal trial is never restorative.

That’s because the criminal justice system is not intended to provide justice for victims of crime — it cannot and it does not. It is meant to serve the interests of our broader society, by enforcing our laws to protect us and punish and possibly rehabilitate those who break them. And it is in exactly this respect that this trial has most failed to serve a just public purpose.

Because if it is possible, in reading Judge Horkins’s verdict, to understand why he found the evidence inconsistent or unreliable and how that raised reasonable doubts as to guilt, it is impossible not to see the message his dissection of the accusers’ testimony sends to anyone else who might report such a crime.

This is a case in which it was reported widely in the press that a man may have victimized people over a period of years. And in response to that, police publicly called out for anyone who may have been victimized to come to them. These three women said they were willing to report years-old incidents officially because the police asked them to; because there seemed to be a broader interest to be served. For their trouble, they were humiliated, discredited and disbelieved.

It is crystal clear — because it is the plain legal truth — that in most cases of sexual assault, which turn on the matter of consent, and in which there are no witnesses aside from the alleged victim and the alleged perpetrator, and where there is no physical evidence that would prove a lack of consent because there is no physical evidence that could possibly prove that . . . in such cases, it is one person’s word against another’s. And therefore, the credibility of the victim becomes one of the essential contested facts of the trial, to be questioned and debated and attacked and judged.

Why would a victim put themselves through that? What prospect for justice does the system offer to them?

“At the end of this trial,” the judge concluded, “reasonable doubt exists because it is impossible to determine, with any acceptable degree of certainty or comfort, what is true and what is false.”

That is the case here, when police and prosecutors were actively soliciting evidence in a high-profile case which they knew would serve as an example to all of society — in fact, a case which the police said provided an example of how they take such allegations seriously and treat victims with, as then police chief Bill Blair said when the charges were laid, “dignity and respect.” Why would anyone expect a better result in more typical, less encouraging circumstances?

I don’t ask these bleak questions because I have some pat conclusion in mind about how justice should have been served here; I have no bright idea for an alternative to our justice system, which has evolved over centuries. But watching this trial and verdict, I am led to wonder if in some kinds of cases, that agesold system can produce something we can call justice at all. Edward Keenan writes on city issues ekeenan@thestar.ca. Follow: @thekeenanwire