Constance Backhouse is a professor in the faculty of law at the University of Ottawa, the holder of the university’s research chair on sexual assault legislation in Canada and the author of Carnal Crimes: Sexual Assault Law in Canada 1900-1975. We spoke with her about the Jian Ghomeshi trial, which begins Monday in Toronto.
Mr. Ghomeshi will be facing sexual assault and choking charges related to incidents alleged to have occurred between late 2002 and the summer of 2003. Is that difficult to prosecute, since it may come down to “he said/she said?” What are the issues around so-called historical sexual assaults?
Obviously, it is hard to prosecute all cases of sexual assault because – using your words – we come up against a cultural perspective about that “he said/she said” problem. For me, the difficulty is that we tend, as a society, to just come at this with a disbelief of what women say. I don’t think women who complain of sexual assault should be under any different presumptions than anybody else who complains about a crime. I agree the criminal justice system has to make an assessment as to whether the act was committed, and the burden of proof is a very high one, “beyond a reasonable doubt.” When you put the added problem of a distance in time on top of that, it does indeed become very challenging to prove inside a criminal justice system that tends not to believe the women to start with.
What might be the approach of the prosecutor, Michael Callaghan?
I think you put the women on the stand, they tell their story, the judge/jury listen, and then they listen to Jian Ghomeshi’s story, and they decide: “Could they believe, do they believe the complaint beyond a reasonable doubt?” And if so, they convict. If they don’t, they don’t. But I think we should put the criminal justice system to the test.
Is there an unusual amount of pressure on Mr. Callaghan? This is such a high-profile trial that I’ve heard women suggest if it fails, it could be taken as a sign by some victims of sexual assault that they shouldn’t bother coming forward.
We always say that. The conviction rate for sexual assault is one of the very lowest of all the crimes in Canada. There are a lot of women out there who aren’t believed. There are a lot of disincentives to report. Yes, the Ghomeshi trial will be in the public spotlight. We had ones before. I don’t know if you remember the case of Gerald Regan, the former Nova Scotia premier? There were multiple complainants who came forward and said that while he was a famous, powerful politician, he sexually assaulted them, sexually harassed them. He was acquitted. We have a criminal justice system where the playing field is definitely unbalanced, it’s not fair. And that’s one of the reasons women don’t disclose.
The burden on Mr. Callaghan would seem to be extraordinary.
I would phrase it differently. I would say the burden on the criminal justice system is very high. It has to be seen to treat this case with fairness, and it’s not known for doing that, in the general sense. So I think placing the burden entirely on the Crown is a little unfair. There’s a burden on everybody.
Do you have any sense of what strategy the Crown might pursue?
No. And I’m sure you know, Ghomeshi’s criminal defence team is pretty good. That’s another interesting thing: Who in our system can afford to pay for that level of defence? And it certainly is not available to indigenous people,
to racialized people, to poor people. They don’t have nearly the same resources to go into one of these trials.
Are you surprised that the defence elected for a judge-only trial?
There’s a lot of debate about the role of a jury, and when you pick one and when you don’t. Some defence lawyers may say jurors are more doubting of sexual assault complaints than judges, because judges see more of it. Other people say that with a case where it seems public opinion is in one direction, you need to be very cautious of a jury, because judges are more used to being balanced. It’s six of one, half a dozen of another.
Contrary to your suggestion that we tend to disbelieve the complainants, it seems there was a lot of disbelief of Mr. Ghomeshi.
Well, that’s another interesting question. I mentioned earlier that people who are accused from minority communities often don’t have the resources. ... Ghomeshi may have the resources, but he is still racialized, and I would ask some interesting questions about why the public is against him. I’m not sure it is, but why did Gerald Regan, a white man, not have the same public challenge to him?
It seems most people stood by Mr. Ghomeshi after he was fired by CBC and he posted his note on Facebook defending his sexual activities. But they turned once the full allegations emerged. They felt especially betrayed by his Facebook post. I’m not sure I see evidence of racism.
I do a lot of historical work on Canadian racism. We have a long pattern of not talking about it. We’re shocked when people bring that to our attention. But we have a massive, deep history of it. One last thing I would say: I study the history of rape trials, and one thing that’s clear is that reputations are made from big-profile cases like this. And I would guess with Callaghan, his reputation could be made on this case. When you ask about pressure, that’s pressure. It’s an opportunity, and it’s pressure.
Mr. Callaghan is a well-respected Crown who has spent a lot of time in mental-health court, where he had to balance competing interests between the public desire for conviction and empathy for the mentally ill defendants.
We don’t know what Ghomeshi’s line of defence is going to be, and the defence counsel may not have made their final decision until they see the fullness of the Crown’s case. But maybe they’ll make a mental-health argument? Especially if Callaghan is there and they know he would understand it.
Mr. Ghomeshi has spoken of having a generalized anxiety disorder.
And, you know, everybody’s under stress, but I would think his job put him under a lot of stress. You know, it doesn’t excuse anything that happened; it just helps us make more sense of how it might be fixed. Because I think that’s certainly my view: How do you fix this problem? And we’ve got a long way to go in figuring that one out.