Last Thursday, former CBC radio host Jian Ghomeshi walked out of court a free man after being acquitted on four counts of sexual assault and one charge of overcoming resistance by choking.
The high profile trial in February saw three witnesses take the stand. But their testimonies crashed and burned under the expert cross examination by Ghomeshi’s defence lawyer Marie Henein.
Henein was able to clearly show inconsistencies, deceptive conduct, breaches of oath to tell the truth, withholding of information to the police and the prosecution, and “playing chicken” with the justice system. As one glaring hidden fact after another surfaced, people were dumbstruck with the flagrant disregard of the oath to be truthful. Many wondered just how well the prosecution had prepared the complainants – “L.R.”, Lucy Decoutere, and “S.D.” – for what they would face.
The judgment was met with anger by many women who supported the witnesses and who decried the perception of blaming the victim. But it wasn’t that the system was set up to blame the victim but that the victims set themselves up to fail.
And in light of the facts, Justice William Horkins verdict was absolutely right.
“The success of this prosecution depended entirely on the Court being able to accept each complainant as a sincere, honest and accurate witness,” said Judge Horkins in his Reasons for Judgment. “Each complainant was revealed at trial to be lacking in these important attributes. The evidence of each complainant suffered not just from inconsistencies and questionable behaviour, but was tainted by outright deception. The harsh reality is that once a witness has been shown to be deceptive and manipulative in giving their evidence, that witness can no longer expect the Court to consider them to be a trusted source of the truth. I am forced to conclude that it is impossible for the Court to have sufficient faith in the reliability or sincerity of these complainants. Put simply, the volume of serious deficiencies in the evidence leaves the Court with a reasonable doubt.”
The trial has opened up a wider dialogue on how sexual assault is prosecuted and defended in Canada. The fallout is of course whether women in the future will be more reluctant to report their own victimized circumstances.
Sexism and prejudice still surface. Last year, details of a sex assault case in 2014 involving a homeless 19-year-old woman surfaced. During the trial, she was callously asked by Justice Robin Camp, “Why couldn’t you just keep your knees together?” That comment earned Camp a review of his conduct by the Canadian Judicial Council.
Sexual assault cases are harsh, difficult to prove, and horribly embarrassing. According to Statistics Canada, 91 per cent of these cases are never reported to the police. Women shrug it off and walk away.
Probably looking over their shoulders at the Ghomeshi case are the women alleged to have been sexually assaulted by Bill Cosby in the U.S. In the U.K., all those women allegedly abused as children by the late TV personality Jimmy Savile might also have what-if questions.
Credibility is everything in “he-said-she-said” trials where affirmative consent is a flip from “no means no” to “only yes means yes”. But credibility of the complainants in the Ghomeshi trial was profoundly missing.
“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,” wrote Judge Horkins.
The legal system demands explicit truth and the three women who testified should have been better primed for the rigid demands of a criminal trial. There’s no wiggle room for inconsistencies, 11th hour disclosures, omissions, hidden collusions, or veiled deceptions.