Missing the Mark: Why the Post-Ghomeshi Outrage Makes Little Sense - LawNow Magazine

Missing the Mark: Why the Post-Ghomeshi Outrage Makes Little Sense

criminal lawAlmost everyone has an opinion about one of the most followed trials in Canadian history. The Jian Ghomeshi trial left a trail of furious people in its path like an F5 tornado that veered off course. Many of those who are angry about the Ghomeshi trial allege that there was an injustice— that the Ghomeshi trial is proof that rape myths still run rampant in our court system. However, those who opine that “women’s rights” have been trampled by this case are not only wrong, but also seem to have a narrow, uninformed view of the outcome. This problematic viewpoint that many Canadians share has spread across the country like a viral outbreak, and has infected the Canadian population with poor judgment.

The result of each cross-examination of the complainants in the Ghomeshi trial led to a public outcry for sexual assault case reform, and defence counsel Marie Henein was demonized for discrediting the complainants. A popular opinion seems to be that a complainant’s word should, absent cross-examination and any resulting damage,  be enough for a conviction. Because, as the nay sayers argue, a decimating cross-examination in a sex assault case undermines “women’s rights” and causes irreparable harm.

What the public lacks, it seems, is an understanding of the term “credibility” in a court of law. It’s quite clear in his reasons for judgment that Justice Horkins found Ghomeshi not guilty not because the complainants were women, or because there was no direct evidence, or because he is a rape myth supporter, but because each of the complainants showed a serious lack of honesty and candour in their testimony at trial. If Canadians are in support of a system of justice that can convict people based on testimony from witnesses who have been clearly shown to withhold information (and outright lie), then what is the point of having an adversarial system of justice at all? Why even have a trial? Why not skip the whole thing and convict people after statements are given to police?

This case was not a perpetuation of rape myths or false social constructions of the ideal victim. This case was about the basic principles of credibility in a courtroom and the strength of the evidence the Judge had before him. What these angry Canadians should be considering is what damage has been done to “women’s rights” when three complainants come forward to report an historically under-reported crime, and choose to do so without being forthcoming or honest. The damage to the credibility of the three complainants was not done by fancy lawyer tricks, and Mr. Ghomeshi was not found not guilty because of a “technicality.” Rather, the women were found to have lied about things that were at the very core of their statements and at the very heart of their complaints. Their actions (and inactions) were far more than just a minor inconsistency between their testimony at trial and their statements to police. Had Justice Horkins convicted any individual on such evidence, our justice system would be a mockery of what it’s been designed to be.

The term “women’s rights” has been nestled between quotation marks in this article because the way it has been used by many Canadians when talking about the Ghomeshi case implies some sort of one-size-fits-all approach. In reality, the concept of “women’s rights” has not only been compartmentalized, but it is a widely accepted notion in academia that a conversation about “women’s rights” cannot be devoid of class, race, ability, sexuality and so on. In the Ghomeshi trial, three English-speaking, middle-class women, with many resources and opportunities afforded to them (including representation by their own counsel) arrived in court and chose to give evidence that was not honest.

If Canadians are in support of a system of justice that can convict people based on testimony from witnesses who have been clearly shown to withhold information (and outright lie), then what is the point of having an adversarial system of justice at all? Why even have a trial?What’s ironic about the post-Ghomeshi “women’s rights” championing has been the targeted anger towards Marie Henein. Marie Henein has been labelled as a “traitor” to her own gender even though she showcased her competence, vigor, talent and advocacy. Women should champion Marie Henein’s mere existence in our legal system, and should be gently reminded that she is a successful woman in a society that is not yet absent of patriarchy, sexism and unequal opportunity and pay. She has flourished in a career path that most women leave after a few years of practice. In addition, if any of Marie Henein’s Twitter assassins were accused of sexual assault, or if any of their husbands, fathers, or sons were accused, and complainants testified against the accused in a similar fashion as the complainants did in the Ghomeshi trial, two things would be profoundly certain: (1) they would want Marie Henein to represent them or their loved one; and (2) they would be outraged if they or their loved one was convicted on the word of complainants who were dishonest about extremely relevant information, in an extremely important matter.

This case was not a perpetuation of rape myths or false social constructions of the ideal victim. This case was about the basic principles of credibility in a courtroom and the strength of the evidence the Judge had before him. Any future complainant who braves the humiliation of having to testify in court will not be scarred or tainted by the Ghomeshi decision— not to worry, verdicts of guilty will still be found in the courts. But this country cannot support convictions on less than truthful evidence. This country cannot support convictions when there is reasonable doubt. This country cannot support or give credence to people in our society who take an oath to tell the truth, but instead, figuratively spit in the face of the court. Otherwise, our court system would just be, in the words of Lucy DeCoutere, “theatre at its best.”

Authors:

Melody Izadi
Melody is a criminal defence lawyer with the firm Caramanna Friedberg LLP, located in Toronto, Ontario.
 


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