Weekend Reads A defence lawyer’s take on Jian Ghomeshi’s acquittal and the #believewomen movement

19:46  07 december  2016
19:46  07 december  2016 Source:   National Post

Statement from Kathryn Borel on Jian Ghomeshi

  Statement from Kathryn Borel on Jian Ghomeshi Statement from Kathryn Borel on Jian GhomeshiHi everyone. Thank you for coming out and listening. My name is Kathryn Borel. In December of 2014, I pressed sexual assault charges against Jian Ghomeshi. As you know, Mr. Ghomeshi initially denied all the charges that were brought against him. But today, as you just heard, Jian Ghomeshi admitted wrongdoing and apologized to me.

Kathryn-Wells: NP/File © NP/File NP/File Ghomeshi-1: Chloe Cushman © Chloe Cushman Chloe Cushman

In the days since former media star Jian Ghomeshi’s acquittal on sexual assault charges, protests against the ruling have been held across the country. Monday saw demonstrations from Victoria to as far away as Yellowknife. National Post Radio’s Matt Gurney spoke to Kathryn Wells, a defence lawyer and senior partner at Wells Criminal Law in Toronto, about the trial, the ruling and the anger it has evoked.

Q: When we were talking last week, you and I were both on the same page that we did not expect to see a conviction here. Mr. Ghomeshi was acquitted on all charges. And when the judge was reading his ruling, it was pretty clear really quickly which way he was leaning.

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A: Absolutely. What I would say to the general public is, read the entirety of the decision. This is a judge who’s been around a long time. He’s smart, he’s articulate and what is set out in that decision is the major issues in their evidence. For example, and I’ll just pull one out, he says (complainant) Lucy DeCoutere swore to the police that after the alleged assault in 2003 she only saw Mr. Ghomeshi in passing. Now in the course of the trial it became clear that she deliberately chose not to be honest with the police. And that’s a huge problem. And so on the eve of trial or on the eve of second day of trial, it comes out that she’s been having an ongoing relationship with him. Those aren’t insignificant issues.

Q: What I had thought was interesting, Kathryn, was how at a couple of times, not so much with Ms. DeCoutere but some of the other witnesses, the judge went as far as to politely say that this was not inconsistency, these are not inaccuracies, that there were actually dishonest statements that were being made.

Ghomeshi's lawyer blasts Mulcair for #IBelieveSurvivors tweet

  Ghomeshi's lawyer blasts Mulcair for #IBelieveSurvivors tweet Jian Ghomeshi's lawyer has called out NDP Leader Thomas Mulcair for tweeting that he believed survivors of sexual assault, just hours before her famous client was acquitted. Mulcair, however, doubled-down Wednesday afternoon with another tweet.In an interview with the CBC's Peter Mansbridge that aired Tuesday, lawyer Marie Henein was asked about the #IBelieveSurvivors hashtag that resonated on Twitter in light of the Ghomeshi verdict and, specifically, Mulcair's use of the term."Hashtag 'I believe' is not a legal principle, nor should it ever be," she said.

A: The reason why he can say that is because these witnesses already swore an oath. They swore an oath before trial when they gave the police statement and a lot of people again don’t appreciate that. But when someone sits down in a case, particularly like this with such serious allegations, they give a videotaped statement and they swear an oath just like they do in court. It means just as much as the one in court.

Q: One of the specific things the judge said that proved so controversial was, “We must move past the myth that women never make false accusations of sexual assault.” That was interpreted by many people as being a sly but meaningful testimony on the witnesses in this particular case.

A: The fact remains, and I see it all the time, people make false allegations. That’s what does a disservice to people who are honest and coming forward with the truth. In the context of sexual assault, women sometimes will fabricate an allegation for some reason that has nothing to do with whether the accused did something physically violent or sexually violent and it has to do with jealousy or manipulation.

'Not proven:' Perhaps Canadian courts needed third option for the Ghomeshi verdict

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Q: What I find very interesting though is how on the one hand you’ve heard people saying two contradictory things at once. You’ve been hearing “believe women,” #believewomen even, we’ve reduced it to that. On the other hand, everyone will agree of course you’re innocent until proven guilty. I don’t know how we structure a system that believes women on the one hand and also presumes that the accused is innocent.

A: If your friend comes to you and says ‘I was sexually assaulted,’ you believe your friend. But you also use your sense of scrutiny for everything else you do in life and sometimes you have questions. When it comes to a criminal trial, you have to dig down when there are those questions because someone else’s life is at stake and someone else’s liberty is on the line. I have a problem with the #believewomen movement. I get it. But it just makes no sense in the criminal justice context. We can support women who say they have been sexually assaulted. We can have resources available. But when it comes to a criminal trial, to #believe everything a woman says, says “Let’s just throw out the trial and convict the guy.” We would be using some sort of different justice system where no one gets a fair trial because the woman said this happened and that’ll be it. That would be a major setback. There are countries throughout the world who are desperate for our system of justice and there are people who have been convicted of things that they didn’t do. And one case that jumps out is that Neil Bantam, the Canadian convicted overseas in Indonesia of sexually assaulting a child. The general consensus is the gentleman probably didn’t do it and did not receive a fair trial. The quality of the evidence is horrendous. But if it was #believekids that’s exactly what you get. Which is, “You’re convicted, the kid said it.” That’s full stop. We cannot regress to that justice system. We just can’t.

National Post

This interview has been edited and condensed.

Ghomeshi trial: Everything wrong with sexual assault law .
Brenda Cossman, a law professor at the University of Toronto, says the trial will discourage victims from coming forward.But that does not make the acquittal any less disturbing. The trial was literally a performance in everything that is wrong with sexual assault law, or more specifically, the way our sexual assault law’s are applied. The Criminal Code provisions on sexual assault are actually pretty good — there is an expansive definition of consent or more specifically its absence, and the Supreme Court of Canada has insisted that consent be positive and on-going. But the social norms through which these laws are applied still leave a lot to desired.

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