The most-followed sexual-assault case in recent Canadian history has given way to a heated public debate over the judicial system itself.
The acquittal of Jian Gomeshi on all charges after a case that stretches back to his arrest in 2014 has put a spotlight on the complainants’ honesty and the prosecution’s handling of the file – including how the police dealt with the women as they came forward, how vigorous they were in questioning them and how much the women were prepared for the trial by their own lawyers and by the Crown.
Though in his ruling on Thursday, Justice William Horkins made clear his decision rested on the women’s credibility after the defence repeatedly caught prosecutors off guard, it is also the justice system’s ability to handle sexual-assault cases that is being called into question.
In the immediate aftermath of the verdict, women’s rights advocates were swift to condemn the ruling as evidence that stereotypes about sex-assault victims’ conduct are still undermining attempts to hold perpetrators accountable. And, conversely, some defence lawyers asked whether the police tried hard enough to pull the whole truth from the women.
“There are two ways of conducting a witness interview: the hard way and the soft way,” said Dirk Derstine, a Toronto criminal lawyer. The hard way is “to give them a good shake. You do that with people you think are not telling the truth.”
Mark Pugash, a spokesman for the Toronto Police Service, rejected that notion. “Their job is not to cross-examine. They have to interview people who in many cases have been traumatized. Their job is to provide an environment in which people feel comfortable, in which they feel they can speak candidly.”
He said years ago, police were rightly criticized for lacking skill in investigating sex-assault allegations and in how they interacted with victims, and have worked extremely hard to improve. He cited more than half a dozen paragraphs in Justice Horkins’s ruling in which the judge put the responsibility at the feet of the women for suppressing the truth. The third complainant met with police five times and on each occasion was warned to tell the truth, the judge said.
The women gave sworn statements before a commissioner of oaths, and at each session were given an opportunity to reflect on anything they wished to change, Mr. Pugash said.
If the Ghomeshi case was a bellwether of stereotypes in sexual-assault law, the women themselves bought into the stereotype that what they did afterward reflected on the truth of their allegations, according to Ottawa criminal lawyer Anne London-Weinstein.
“It’s almost like they sort of believed in the stereotype. They thought no one would believe them if they told the truth about their after-the-fact conduct. I think the court would have, but the court was just never given the opportunity.”
It was a case in which there was no corroborating evidence. None is required under Canadian law, but that meant the sole evidence was the women’s recollection of events from more than a decade ago. Their credibility (which means honesty) and reliability (which means accuracy) thus became the nub of the case. Any problems with either could raise a reasonable doubt. And reasonable doubt abounded, the judge found.
For any complainant tempted to turn an upcoming trial into a cause célèbre, the case is a cautionary tale. Justice Horkins cited multiple credibility problems involving Lucy DeCoutere, an actress and air force captain: She became an advocate on sexual assault; she hired a publicist; she did a score of media interviews before the trial; she became excited when actress Mia Farrow tweeted that she was joining her “team”; she exchanged 5,000 electronic messages, some about the case, with the third complainant; and she expressed “extreme animosity” toward Mr. Ghomeshi outside of the courtroom.
Justice Horkins also noted that the women had the benefit of independent legal advice. One complainant said she didn’t know how to “navigate this sort of proceeding.” His retort: “‘Navigating’ this sort of proceeding is really quite simple: tell the truth, the whole truth and nothing but the truth.”
Gillian Hnatiw, a lawyer for one of the women, said that for a complainant’s legal counsel to be effective, “they would need to be given the proper time and tools to assist – namely, access to the complainant’s police statement and other essential parts of the Crown brief. Those are things I didn’t have in this case.”
Brenda Cossman, a University of Toronto law professor specializing in sexuality and the law, said Canada’s modern sex-assault laws were not the problem in this case. “They’re actually pretty well written. The problem is changing the culture, the norms, the attitudes through which complainants are viewed and laws are applied. There’s no easy fix here.”
Should the Crown have tried, mid-trial, to bring in an expert on why a victim’s version of events might change after a traumatic event? No, because it could have caused a mistrial, one retired federal Crown lawyer said. An expert report needs to be done in advance and the defence must be allowed to produce its own expert, if it wishes.
“The trial never really happened,” the former prosecutor said. “It was quite a show. I have to empathize with the Crown. You’re watching it fall apart.”Report Typo/Error