Advocates for the Rule of Law
This morning, Justice William Horkins of the Ontario Court of Justice acquitted Jian Ghomeshi of four charges of sexual assault and a fifth charge of choking. Social media immediately erupted in a firestorm of #believethevictims and #believeallsurvivors. Many insults were also directed toward the judge, who, by all accounts, behaved impeccably during the trial. Indeed, he made an evidentiary ruling near the end of the trial clearly in favour of the Crown.
To be sure, sexual assault is a serious societal problem, and over the past thirty years, there has been significant improvement in the law to counter certain myths, such as the notion that unchaste women are less believable.
However, the fact of the matter is that the criminal justice system is not about “believing the victims.” Assuming that an allegation of a crime means that the accused is guilty amounts to trial by lynching — the antithesis of what the rule of law is about. In a criminal case, the question is whether the state has proven, beyond a reasonable doubt, that the accused is guilty of a criminal offence that justifies labeling and stigmatizing him or her as a criminal, potentially taking samples of his or her DNA, placing him or her on a sex offender registry, confiscating his or her property, and, most seriously, restricting his or her liberty.
Did the Crown prove the guilt of the accused beyond a reasonable doubt on all charges? Well let’s consider the following:
- The three witnesses clearly lied to the police and/or in Court about highly relevant factors. While this is not, in and of itself, proof that they are lying or mistaken about being assaulted by Mr. Ghomeshi, it must give one pause about accepting their testimony without reservation. This is not unique to sexual assault trials. On the contrary, every time a complainant gives inconsistent statements in respect of any crime, one’s ability to rely on his or her testimony is compromised.
- There was a serious and obvious risk of collusion between two of the complainants. While it is possible, and even likely, that their extensive pre-trial correspondence was merely to support one another, there is a very real concern that their memories were no longer truly independent.
- The relationship between a complainant and the accused is almost always relevant, whether as evidence of motive to commit a crime, motive to fabricate allegations, or simply whether the allegations “make sense.” While we must be careful not to make stereotypical assumptions about “typical” behaviour of sexual assault victims, we must be equally careful not to restrict the accused’s ability to test the plausibility of the victims’ allegations. As Justice Horkins said in respect of one of the complainants, L.R., leaving aside “stereotypical models” of how abuse victims ought to behave, “the behaviour of this complainant is, at the very least, odd. The factual inconsistencies in her evidence cause me to approach her evidence with great scepticism.” (see para. 43)
- Memories are inherently unreliable. Many will recall that in the popular Netflix series, Making a Murderer, a complainant identified Steven Avery as her rapist, a fact that proved to be demonstrably untrue. Given the inherent unreliability of memories, judges are reluctant — for good reason — to convict anyone of anything on the strength of only one witness. This is especially true where that witness’s memory has proven to be fallible. The complainant, L.R., had clear memories of Mr. Ghomeshi’s yellow Volkswagen “Love Bug.” She testified that his ownership of this vehicle helped convince her that he was “charming” and a “nice guy.” But, as a matter of fact, Mr. Ghomeshi did not even acquire this vehicle until seven months after the alleged assault. In finding that this memory was demonstrably false, Justin Horkins asked, understandably, “what else might be honestly remembered by her and yet actually be equally wrong?” (see para. 36)
- Our criminal justice system is based on the premise that it is better that 100 guilty people be acquitted than one innocent person be convicted. This requires that the accused be given the benefit of every reasonable doubt, and explore all relevant lines of inquiry. We suspect that the vast majority of sexual assault allegations are true. But we know that several are not, as Neil Macdonald recently explored. The Cambridge Law Journal recently estimated that 2-10% of sexual assault allegations are false. While that is a minority, it is very important, in any particular case, that we ensure that the allegations do not fall within that 2-10% statistic. As Justice Horkins noted this morning, the assumption that sexual assault complainants always tell the truth can be as dangerous as the assumption that unchaste women are somehow inherently less credible and reliable.
There remain problems in our criminal justice system with respect to sexual assault. In particular, the witness preparation in this case was manifestly inadequate. But the solution to this is not to reduce the burden of proof, or always “believe the victims.” In the context of a high profile case, it is all the more important to vindicate the rule of law, including the right to vigorous cross-examination and the need to hold the Crown to the high standard of proof beyond a reasonable doubt. Justice Horkins’s decision this morning, exemplified in his conclusion: vindicates these principles:
[139] 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 the Court with reasonable doubt.
[140] 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.
[141] I have no hesitation in concluding that the quality of the evidence in this case is incapable of displacing the presumption of innocence. The evidence fails to prove the allegations beyond a reasonable doubt.
[142] I find Mr. Ghomeshi not guilty of all of these charges and they will be noted as dismissed.
R. v. Ghomeshi demonstrates that our criminal justice system, though far from perfect, works very well indeed.
