Reasonable Doubt: Positives to take from the Jian Ghomeshi trial and verdict

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      I am dismayed about the Jian Ghomeshi verdict. I am sure I’m not the only one.

      Regardless, I do believe a lot of good has come out of it and I know even though Ghomeshi received a “not guilty” verdict on his five counts, charging him and running a trial was not for naught.

      This is the good from the Ghomeshi trial and verdict. One hero has emerged from this story: Marie Henein.

      I know of no other female criminal defence lawyer that has ever been afforded this much media attention and speculation. Henein is practising at the top of her game and is being recognized as such. Criminal defence work is notoriously behind the rest of the practice of law in providing an even playing field for women; it is an old boys club and even most lawyers that practise criminal defence recognize it as such.

      It still takes a woman of formidable strength and focus to achieve and maintain a viable practice in this field. Henein is not only achieving and maintaining a viable practice, she is crushing it and now the world knows it.

      When you have heroes like Henein, perhaps it means everyone else will start checking their attitudes and assumptions at the door about women’s ability to practise criminal defence successfully.

      Another piece of good that has come from this story is that now our advocates for sexual-assault victims have a failure to add fuel to their fire for prosecuting sexual assaults in a manner that is sensitive to the needs of victims. This case screams out for a more in-depth analysis and understanding of normal post-offence conduct of sexual-assault victims.

      The attention this case has got in the media means that we all as a nation have to re-examine our preconceived notions of how people may naturally respond to a sexual assault.

      The third positive that I take from this trial is that everyone learned a little bit more about the justice system from beginning to end.

      The main issue in this case was credibility of witnesses. Ultimately, the judge found he could not rely on their credibility. He was upset by the witnesses' willingness to disregard their oath to tell the truth. Their oath and their credibility are all he had to hang on to in order to find Ghomeshi guilty.

      The judge was troubled with the complainants’ inconsistent statements. Sworn statements were shown not to be completely true and, to some degree, a willingness to ignore their oath to tell the truth on more than one occasion.

      An oath to tell the truth is no joke. It cannot be taken lightly. Court is not the media or a casual conversation with your friend; inconsistencies have consequences. Beyond a reasonable doubt is a very high standard. In sexual assault trials, there is no room for a witness to hold back information under oath and then later trying to explain why they didn’t mention it earlier.

      Everyone in Canada knows that what you do post–sexual assault as a victim will be scrutinized. What this means if you are facing testifying at a sexual assault trial is that you must tell the police or the Crown at some point in the preparation for trial process about any interaction you had with the accused after the assault… even if you’re not asked about it.

      It is possible for the Crown then to manage the information instead of it being sprung upon you by defence counsel. If the Crown does not know about it, they cannot be proactive with it. 

      It is difficult to come forward after a sexual assault. It is made even more difficult and demoralizing when we see high-profile cases end in a “not guilty” verdict. But we can take some lessons from this. Though the burden is heavy in reporting sexual assault, there is one more little thing that victims need to consider and do: give the people in a position to help you excruciating details of your pre- and post-assault relationship with the person you are accusing.

      The judge had this to say just prior to acquitting Ghomeshi:

      “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.”

      Though Ghomeshi walks away “not guilty”, he still walks away in disgrace. It will be hard for him to carve out a life for himself after the events of the past couple years.