Why We Shouldn’t be Disheartened by the Ghomeshi Trial: A criminal lawyer and feminist’s perspective

Photo courtesy of Toronto Star

Before the Ghomeshi sexual assault trial commenced on February 1^st, 2016 at Toronto’s Old City Hall courthouse, it was widely believed that its notoriety would provide an important opportunity for meaningful public discourse about sexual assault – a pervasive crime that is significantly underreported, largely because the trial process is difficult and at times traumatic for complainants, and conviction rates are significantly lower than with other criminal offences.

However, the trial did not unfold as expected. Even though Ghomeshi did not testify, he was acquitted on all counts after the trial judge concluded that the three complainants had been dishonest in their evidence.

This result has sparked substantial outrage and criticism regarding how the justice system operates in sexual assault cases. Many argue the trial has revealed a criminal justice system in which myths and stereotypes concerning “the ideal victim” pervade and complainants are brutalized on the witness stand.  All while the accused hides behind his right to silence. As a criminal defence lawyer and feminist, I fear much of this backlash is misguided and may serve only to further discourage survivors from reporting sexual violence – when in fact there is actually much to be optimistic about.

A good deal of the criticism towards the trial’s outcome and indeed the trial process itself, has been from those who do not seem to have an accurate understanding of the criminal justice system or who misinterpreted excerpts of Justice Horkins’ decision that were posted on Twitter and other media forums.

Our trial system, while imperfect, is a result of centuries of rigorous reflection and reforms, and it is continuously amended to ensure the utmost fairness to all parties involved. With regards to sexual assault law specifically, the system has evolved over time (thanks to the judgments of excellent feminist jurists) to ensure that myths and stereotypes do not taint the truth-seeking process. And in most cases, including this one, they don’t.  Our laws, in fact, provide substantial protections for sexual assault complainants who have the rights to privacy, equality and personal dignity. This means that their personal records cannot be disclosed except in very limited circumstances, and they cannot be subjected to questioning that is abusive, humiliating or grounded in stereotype.

While this process does not always provide the outcome desired by the public, its high standards and thorough testing of the evidence are necessary to ensure innocent people are not unjustly convicted – even if that means someone who may be guilty will go free – and this is something we as a society should be proud of, rather than denigrate when we disagree with the result.

Photo courtesy of CTV News

It is telling that everyone directly involved in the criminal justice system, as well as commentators and scholars across Canada, agree that defence lawyer Marie Henein’s cross-examinations were fair and proper.  Also, most agreed that the trial judge’s decision properly focused on the credibility of the complainants and not on how they measured up to the stereotypical “ideal victim”.

This was not a case where the truth had been forgotten because of trauma or the passage of time. And it was not one where the judge criticized the appropriateness of the complainants’ behaviour itself. He repeatedly stated throughout his judgment that had the women said they omitted key facts because they were embarrassed or felt they wouldn’t be believed otherwise, he would have carefully considered that explanation.

Instead, all three complainants actively denied having any further relations/meaningful contact with Ghomeshi after the alleged assaults and gave detailed explanations as to why they did not. When confronted with evidence to the contrary, the judge reasonably found that their explanations did not pass muster.  Their credibility was therefore undermined to the point that the judge could not accept them as “sincere, honest and accurate witnesses” – a necessary precondition for him to rely on their word to send a man to jail.

Photo courtesy of National Post

While it is, perhaps, understandable that some people are disappointed with the verdict, it is important that the decision is recognized for what it is – the application of the presumption of innocence in a criminal trial.  And despite the disappointment, there is much reason to be optimistic.

First of all, much of the commentary and public reaction has demonstrated that Canadians desire changing the system for the better.  And an extraordinary amount of this feedback has come from  womens’ groups and survivors themselves – whose voices were not often heard in the past, but matter the most when searching for viable solutions. Furthermore, we have come to recognize that the criminal justice system may, in some cases, cause more hardship to the complainant than it is worth. As a result, there has been thoughtful exploration of alternative avenues to achieve justice, including civil proceedings where the standard of proof (and accompanying punishment) is reduced, and restorative justice where the focus is on healing rather than retribution.

Secondly, the trial’s notoriety has brought public awareness and understanding to the issue.  The amount of support garnered with hashtags like #WeBelieveSurvivors is a testament to the fact that many Canadians (men and women) sympathize with the difficulties faced by survivors in achieving justice.  Further, the multi-million dollar education and legislative reform campaign against sexual violence launched by the Ontario Premier Kathleen Wynne last year, received much-needed attention and support while the Ghomeshi controversy was at its peak.

Third, the fact that the complainants in the Ghomeshi case were left in the dark regarding what to expect during the trial, as well as the fact that they were not prepared to endure these difficult proceedings, has highlighted the inequality that exists in legal representation. Many of the pitfalls that befell the complainants could have been avoided if they too were represented by experienced and cost-free criminal counsel. And knowing that someone would be on their side could encourage more survivors to come forward.  Recognizing this problem and the potential solution is the first step to promoting change.

Until we can prevent sexual violence altogether, it is clear that survivors require support in their decision to come forward, and help in maintaining their resolve throughout the often lengthy and difficult proceedings.  Perhaps the greatest contribution the Ghomeshi case has provided is showing survivors that the support is there and the help is coming.