During the courtroom drama in which former CBC host Jian Ghomeshi was tried on four counts of sexual assault and one of overcoming resistance by choking – charges of which he was acquitted this week – Gillian Hnatiw had a moment of fame.
The lawyer for Lucy DeCoutere, the only one of three complainants who was publicly named, delivered a statement after the defence revealed her client’s questionable “post-incident behaviour,” including a gift of flowers and e-mails written to Mr. Ghomeshi after the alleged 2003 choking and slapping at his Toronto home.
“Violence against women is not about the behaviour of the women,” Ms. Hnatiw said. “It is not about how they cope with the assault or the details they commit to memory in the aftermath. It’s not about whether they see their abusers again or send flowers any more than it is about what they wore or how much they had to drink.”
It was a moment of hope for progress on the challenging issue of sexual assault. But to many observers, it was also an expression of denial. Ms. DeCoutere, a captain in the Royal Canadian Air Force and actress in Trailer Park Boys, who had become a champion of sexual assault victims, appeared to have destroyed her own credibility.
Reading from his 25-page decision this week, Ontario Court Justice William Horkins criticized the three complainants for their “willingness to ignore their oath to tell the truth on more than one occasion.”
Onlookers wondered if Ms. Hnatiw had adequately prepared Ms. DeCoutere. Did she press her strongly enough to divulge all evidence that could be used against her?
Ms. Hnatiw, 38, a partner at Lerners LLP in Toronto, spoke to The Globe and Mail exclusively in a face-to-face interview.
Were you surprised by the verdict?
I wasn’t surprised. But to be honest, I certainly, even before Lucy took the stand, I wouldn’t have been surprised at all. I have just seen too many of these cases to be surprised at how they will go. It is not a level playing field. It’s not meant to be a level playing field. [The criminal system] is a system of weighing evidence in accordance with predetermined standards. [It’s] set up that way because the Constitution requires that people accused of crime be afforded certain rights and protection. I take the constitutional guarantees very seriously, but my professional and personal frustration is that Canadians see the criminal justice system as the arbiter of truth and it is not. In what truth-seeking process would you require just one side to tell their story?
For background, can you tell me how Ms. DeCoutere came to be your client?
There were third-party records applications last year in late April, early May for which [all the complainants] had counsel. And that is the point at which I was formally retained by Lucy.
And at one point, were you also the lawyer for Witness No. 3?
I am not and have never been retained by complainant No. 3 in respect to Ghomeshi.
What exactly is your role with respect to the Crown?
The Crown is not the victim’s lawyer. It’s their job to prosecute the case neutrally and dispassionately and that’s important in these cases. First and foremost, it means that the complainant doesn’t have an advocate in the courtroom and that’s something many women don’t understand when they approach and engage with the system. It means that there is no privilege between the complainant and the Crown and so nothing she says is quote-unquote off the record. So in cases where I am approached, I am approached to offer that confidential trust and advice in a solicitor-client context.
In interviews that Ms. DeCoutere has given recently, she has suggested that she was inadequately prepared for trial.She said that you took her to dinner the day before she went on trial and drew pictures of the courtroom with crayons on craft paper. It made the exchange seem infantile and overly simplistic. “The Crown never sat with me and said, ‘This is how you answer the freaking questions,’ ” she said, adding that she felt she “ruined” the case.
We did work together in the weeks leading up to trial to do certain things. I am limited by solicitor-client privilege regarding what I can say. An important factor in this case is that Lucy lives in Halifax so we were geographically constrained to some degree as to what we could do in advance.
Why couldn’t you have taken a flight to see her in Halifax? You are her lawyer.
I suppose I could have. I have done the entire file pro bono, as I always do in these circumstances. And we thought we would have time in the days leading up to trial so it seemed unnecessary. I met with her when she was in town for other reasons, but those were several months removed from the trial. You can’t prepare a witness too far in advance. It’s a bit like studying for an exam. It’s not a heck of a lot of good to study four months ahead of an exam. A lot of that work will be eroded when you take the stand. So we corresponded by e-mail and phone.
But then her testimony was moved up on short notice.
I don’t know why the Crown chose to call her early. It’s the Crown’s case to call as they see fit. So certainly, they don’t share their prosecution strategy with me or with Lucy.
So what happened?
The plan was that she would be called on the second Monday of the trial, and that she would come into town toward the end of the week prior. I had set aside two days to work with her face-to-face on preparation. And then I think she was told on [the previous] Tuesday that she was being called Thursday. Her plane landed at 9:40 p.m. on Wednesday evening. I picked her up from the airport and drove her to her hotel and we went across the street to the closest restaurant because she hadn’t had dinner. We were there until midnight doing what preparation we could do in that time. And the next day someone picked her up from her hotel at a quarter to 8 and she made a supplemental police statement that morning and she took the stand at 11 a.m. So I was really confined in the hours after she landed in Toronto to talk to her face-to-face. I didn’t come armed with crayons and paper. It happened to be an Italian restaurant that had brown paper as tablecloths and there were pencils there. I did draw on the tablecloth. Is that how I ideally prepare a witness? No. But it’s the way things unfolded in the circumstances. I don’t think it’s accurate to say that’s all the preparation she got. But in the immediate lead-up to the trial, just before they take the stand, you come back to first principles. You tell them to listen carefully to questions. You tell them the [layout] of the court, who is sitting where. These are the fundamental tools I can arm them with.
Do you feel that you failed her?
I don’t. I don’t.
Did you have the ability to tell the Crown, ‘This isn’t right. My client needs more time to prepare.’
Yes, I have that ability.
Did you say that?
I did. I’m uncomfortable in being critical of the Crown. I don’t know their side of the story. It was a constant moving target of when [Lucy] was going to be prepared. The Crown is between a rock and a hard place because they’re in trial at that point. They can’t just tell the court, “Oh, our next witness isn’t available.” I don’t know their reasons for changing the order of the witnesses. I objected to the reshuffling as Lucy’s advocate. But at the end of the day, that’s beyond my control, beyond her control, and we did the best we could under the circumstances.
You have said that you were not given access to the police statements she made. Why couldn’t you or Ms. DeCoutere insist on seeing them?
We did make that request. The reason the Crown gave for denying it is that they were aware that there were allegations of collusion and they did not want to open the suggestion that the witnesses had read each other’s police statements. It’s difficult for me to prepare a witness without knowing what it is in their police statement.
Many people feel that you and the Crown were blindsided by the e-mails Ms. DeCoutere sent afterward and in other post-incident behaviours. Were you?
Yes and no. Lucy recalled that there were e-mails as I understand it from evidence that came out in court. She did tell the police about there being e-mails in their initial interview, but again, I never read it so I am constrained by what I can say. It is my understanding that she told the Crown that there were e-mails. I think they were on an e-mail account that had long been inactive. If you don’t access it over a long period of time, I don’t know you can say they were deleted as things live forever out there in cyberspace, but she couldn’t access them any more.
Did you press her, asking, “Have you disclosed everything?”
Every good lawyer will press her client in that way. I cannot talk about the things I said to Lucy and things she said to me. But I will tell you that every good lawyer, and I aspire to be one, will press their client on the issues. That’s our job. I certainly go into every conversation with a victim open to believing what they have to say but it is not blind faith and I am probing their evidence.
What have you learned from this case?
I think there are some very basic fundamental things that need to be repeated in very simple terms to make sure they are understood. As lawyers, we are always guilt of talking too much and thinking that we are being clear and thinking that we are being understood, but if someone says after the fact that they didn’t understand clearly, then I take that seriously, and I would need to think of ways to state it more clearly.
Is this one of the more difficult cases for you?
It is the most unusual case that I have taken on in part because there was no formal role for me and the things that I planned to do I was ultimately unable to do. I ultimately want to be a lawyer and not a public figure and so standing on those steps and making that statement was not something that I envision doing on a regular basis, but I think it was appropriate to do in this unusual case. I felt frustrated for [Lucy] at that point. The trial was playing out much as, sadly, I anticipated, which is that instead of being about Jian and what Jian had allegedly done, it was all about Lucy and what she had done or not done.
The temperature about this case and the outcome is high.
Yes. But I have to believe that I am doing some good because in the long arc of history it takes cases like this to effect change.
Still, it’s upsetting.
Who hasn’t been upset? I know these women intimately at this point and I don’t think that the way they have been publicly portrayed tells the whole story. What I do really grieve for is the fact that there is a fair part of the public that has branded these women as liars. They are not liars.
Many have said the judge was unnecessarily harsh on the credibility of the complainants.
I think that his comments were internally inconsistent. He says at the outset that victims of assault often act in incongruous ways which I can tell you that I know to be true. And then he goes on to comment about their odd conduct and that they seem to have acted in ways that are inconsistent with what they have alleged. I don’t know how you reconcile those two statements. One of the things that Lucy was told prior to trial was that Justice Horkins really prefers a serious witness. And she doesn’t present as a serious person. That’s who she is. It all fits into this preconceived notion of who is a victim and how they should behave. There’s lots of talk about how you have to be the perfect victim. And I can’t say that I disagree with that from what I have seen.
Ms. DeCoutere has said that defence lawyer Marie Henein made her feel shame. Or was she just doing her job?
Both those things can be true. Henein could be doing her job within the confines of the law and Lucy could still feel shame. It’s not one or the other. The women who have engaged with the system come out the other end feeling re-traumatized because they feel so picked apart and dis-empowered by the system. And certainly victims of sexual assault are already saturated with feelings of self-blame and shame. It’s almost as though someone is asking you the questions that you yourself are asking in your darkest hour. What did I do? How could I have prevented this?
Do you feel there were any positive outcomes? Any progress?
I think there’s an unprecedented amount of attention and amount of conversation that’s occurring around these issues. And I hope that leads to change.
Has the discussion about sexual-assault trials suffered a setback?
I think that’s too harsh. It’s hard to step back from the numbers as they currently stand in terms of people who come forward and report sexual assault. If you are a victim of assault and have been on the fence about whether to come forward and have been watching this trial, I don’t think they will come forward. That I will concede. What I hope it does is allow people to be better informed about their options and be better supported.
Have you spoken to Ms. DeCoutere since the verdict was delivered?
Yes. We are on good terms.