What really went wrong in Jian Ghomeshi's trial

What really went wrong in Jian Ghomeshi’s trial

A chorus of voices claims the Ghomeshi trial exposes the flaws in courts’ handling of sexual assault. But ‘the system’ isn’t the only party that bungled it.

TORONTO, ON - FEBRUARY, 1  - Ghomeshi arrives with his lawyer, Marie Henein First day of the  former CBC hosJian Ghomeshi trial at Old City Hall court. (Richard Lautens/Toronto Star/Getty Images)

Jian Ghomeshi arrives with his lawyer, Marie Henein, at the first day of his trial. (Richard Lautens/Toronto Star/Getty Images)

Everyone was primed for the Jian Ghomeshi sexual assault trial to train a spotlight on flaws within the Canadian criminal justice’s treatment of sexual assault. What no one anticipated was that the eight-day spectacle would illuminate the role of the complainants—and perhaps even their power— in determining the “reasonable doubt” required to convict in all criminal cases.

There’s no question that the legal system in place to deal with sexual assault is deeply flawed. But it’s also the only system able to provide the justice the three women sought when they went to police with their allegations. R. v. Ghomeshi was a textbook lesson in how not to navigate that system. It revealed how complainants can squander what power they do have; the three complainants did not appear to understand—or else chose to flout—the courts’ most elemental rules. This compromised the quest explicitly expressed in messages between two of the witnesses, texts they should not have been exchanging, read aloud for effect by defence lawyer Marie Henein: “I want him f–king decimated,” said one. “Let’s sink the prick,” read another.

As it turned out, if anyone was submerged over the course of the trial, it was Ghomeshi’s accusers, who ignored the common-sense rules given by police and prosecutors: Don’t talk to the media. Don’t communicate with the other complainants, even if they provide support, lest it give rise to allegations of collusion. Try to remember every detail of the assault and what happened after, even those that might prove embarrassing. Comb over old emails, correspondence or interactions with the accused that could be used to contradict or undermine allegations. Don’t consume media about the trial before you testify. And, most important: Tell the truth, the whole truth, and nothing but the truth.

Related from Anne Kingston: ‘Well, it’s over.’ Ghomeshi’s trial draws to a close

The fallout played out day after day, as the gallery gasped with bombshell disclosures of crucial facts withheld. Reversals in testimony were commonplace. Two of the witnesses made last-minute adjustments to testimony, suggesting they were consuming media about the case. Only hours before taking the stand, Lucy DeCoutere told Toronto police and Crown prosecutors that she’d sent flowers to Ghomeshi shortly after he allegedly kissed her, squeezed her throat and cut off her air, and slapped her hard three times across the face in the summer of 2003. It all provided glorious fodder for defence counsel: “The constant late-breaking changes make me feel like I’m in the Twilight Zone,” Henein griped at one point.

Such vertigo-inducing revisions were debilitating to Crown prosecutors Michael Callaghan and Corie Langdon, serving to hamper their ability to prosecute the most difficult type of sexual assault case: historic allegations made by acquaintances.

It’s not surprising that a chorus has emerged, claiming the Ghomeshi trial will result in victims of sexual assault being even more unwilling to come forward than before. Perhaps. The filleting that each of the witnesses endured at the hands of Marie Henein may certainly discourage other women from entering the legal system.The trial also laid bare the reality that the Crown is there as the people’s representative and, contrary to common assumption, not as the complainant’s lawyer. In fact, the complainant is only a witness, with no standing in the court. But there’s another lesson to be learned here: That for justice to prevail in sexual assault cases, complainants need rigorous preparation for the adversarial tenor that accompanies all criminal prosecution. That begins with basic understanding of both the definition of sexual assault and consent. On the stand, DeCoutere said she didn’t think her experience qualified as sexual assault: “I thought you had to be broken and raped,” she said.

The Ghomeshi charges originated what now seems a very long time ago, in the face of shocking evidence including a video, according to CBC management, that allegedly showed a woman being “physically hurt” by Ghomeshi, then host of the radio show Q. The CBC fired its marquee star; hours after, Ghomeshi took to Facebook in self-defence, claiming a penchant for consensual BDSM. The Toronto Star then ran a story featuring numerous unnamed women claiming Ghomeshi had sexually assaulted them; the story ran before the women had reported to police—practically unprecedented. Twitter was a sea of #IBelieveThem and #RapedNeverReported hashtags. The overwhelming support on social media—along with then-Toronto police chief Bill Blair’s press conference encouraging victims of sexual assault “to come forward and report”—paved the way for a number of women, including the four facing off against Ghomeshi in court, to brave the system and report.

But the trial revealed the disconnect between the court of public opinion and the courts adjudicating laws of the land. Ontario Court Justice William B. Horkins made this clear on day one: “My focus is on what happens inside this courtroom,” he said. What the courtroom saw was witnesses who had been celebrated and intrinsically believed outside of the courtroom being undone, not so much by Henein’s legendary cross-examination as by their own words.

The case proved that the “he said-she said” descriptor used in sexual assault cases is a misnomer. There was no “he said”: Ghomeshi, presumed innocent, did not have to testify. The burden was on the Crown to prove him guilty beyond a reasonable doubt on four counts of sexual assault and one of “overcoming resistance by choking.”

That also put a burden on the witnesses, who do not appear to have received adequate coaching, even though two of the three complainants retained independent counsel (the third witness’s lawyer dealt with a third-party record application). While the Crown’s mandate includes witness preparation, it doesn’t “coach” witnesses or prepare them for cross-examination, as a defence attorney does. Its goal is to lay out the facts of the case plainly and without prejudice.

Related from Chatelaine: How are witnesses prepped for sexual assault trials?

The Crown can only do so much, says one criminal lawyer. “I can assure you they would have told the complainants, ‘Do not communicate with each other.’ But they can’t stop them,” he says, adding, “Do you want Callaghan to take away their cellphones?” Nor will the Crown advise complainants to track down emails; anything unearthed has to be shared with the defence. That said, with more rigorous pretrial interviewing by both Crown and police, some of the surprises in court could have been avoided.

Among criminal lawyers there’s also criticism the complainants’ lawyers did not properly prepare them. Clearly the witnesses had been advised not to cower in the face of Henein’s withering cross-examination. What they didn’t seem to grasp is that Henein’s confident interrogation rests, in part, in the intensive prior investigations that unearth the sort of “gotcha” moments that abounded in Ghomeshi.

“The first thing I tell clients is to go back and get every single email and every single text you have ever exchanged with the defendant,” says one criminal lawyer who represents complainants in historic sexual assault cases. “You review them with the client; if I think they’re of benefit to prosecution and wouldn’t help the defence’s cross examination, I’d disclose to the Crown; if not, your client is perfectly prepared to explain on the stand.” He’s baffled by DeCoutere’s explanation that she forgot her Hotmail account password and couldn’t remember if she sent notes to Ghomeshi; they should have accessed the account via a third-party record application, he says.

The fact complainants’ lawyers talked to media and were on social media before the trial has been raised as another concern. “Look at how Marie handled media,” says one lawyer. “There was no comment. Anyone with any experience representing a victim in criminal prosecution knows that.” A lawyer talking about the case on TV and Facebook isn’t leading by example, says one lawyer: “How are you going to say ‘shhh’ to your client?”

Related at macleans.ca: Lucy DeCoutere on nightmares, healing and Ghomeshi

It seems clear the complainants had entered a system they had been conditioned to fear; how they acted on those preconceptions proved to be damaging. The complainants’ plentiful, often conflicting statements to media and police allowed Henein to pick away at inconsistencies and falsehoods to raise reasonable doubt. The problem here was of the chicken-egg variety: the women had gone to media rather than police because problems in the prosecution of sexual assault are so well known. But going to media first opened them up to evisceration on the stand. The unravelling began with the first witness, who accused Ghomeshi of yanking her head back on one occasion in late 2002 and punching her three times on another in 2003. As Henein told the court, the woman had given four media interviews that omitted the kissing that had taken place before the first alleged attack.

DeCoutere, the former Trailer Park Boys actor who became the face of the Ghomeshi scandal, had given 19 media interviews and issued four press releases, some before any charges were laid. But she also spoke publicly after. A June 2015 Toronto Life story about Ghomeshi’s life after charges had been laid (Ghomeshi declined comment) portrays DeCoutere as a self-appointed ringleader of women intent on bringing Ghomeshi down: “The way [DeCoutere] described it to me she coordinated a covert network of women who have spent the last seven months sharing their assault stories with each other,” the author wrote, saying DeCoutere claimed that “over a dozen [women] who never went to the police or the media” had been assaulted by Ghomeshi, one of them “hospitalized.”

As it happened, nothing Henein unearthed or presented to the court was categorically inconsistent with the complainants’ testimony that Ghomeshi sexually assaulted them. And none of the complainants’ behaviour after the alleged sexual assaults, revealed to the court, was unusual, as both Henein and Callaghan made clear. It was their prevaricating and withholding of information that damaged their credibility and reliability.

Lucy DeCoutere and Jian Ghomeshi and shown together in 2003 in this exhibit photograph from Jian Ghomeshi's trial. (CP)

Lucy DeCoutere and Jian Ghomeshi are shown together in 2003 in this exhibit photograph from Jian Ghomeshi’s trial. (CP)

No behaviour was more damaging to the case than the incessant communication between two witnesses. DeCoutere and the third complainant exchanged some 5,000 emails between Oct. 29, 2014 (the day DeCoutere went public with her allegations) and September 2015, some discussing the specifics of their allegations—contrary to denials made on the stand. The charge of possible collusion prevented the Crown from mounting a “similar fact” case, one that would use the similarities of the three situations to contend that Ghomeshi had a propensity to act in the ways described by the complainants.

Certainly, themes emerged. All of the complainants were taken by Ghomeshi, then the host of a late-night pop culture show on a CBC cable channel—the “perfect gentleman” and “charming,” as the first witness testified. All were shocked by the suddenness of the alleged assault. “He was kissing my neck and I just felt, all of a sudden, I felt his hand on my shoulders and his teeth,” the third witness testified. “Then his hands were around my neck and he was squeezing.” It was like a “switch,” she said: “It wasn’t the same person there.” Denial and confusion were also common.The first witness said she considered the first violent incident “a one-off.”

But the complainants’ testimonies shared another trait: It wasn’t only the court that had entrenched, retrograde notions of how the perfect sexual assault victim should behave—i.e., immediately report the assault and break all ties with the abuser. The complainants had absorbed the message.

Related from Anne Kingston: How Ghomeshi got away with it

Two adopted the script of trauma, even when it wasn’t true, to make their stories more believable. The first witness was so “traumatized” she couldn’t watch Ghomeshi on television or hear his voice; she couldn’t even listen to the new Q, she said. Moments later the court was shown two emails she’d sent long after the alleged assaults, one with a photo of herself in a bathing suit. It was intended to provoke a response, she testified, so she could ask him why he had punched her. The third witness, who claimed she was afraid to be alone in private with Ghomeshi after the alleged assault, invited him back to her place where, in Henein’s words, she “gave him a hand job,” a salient detail absent in her December 2014 police report. The witness said she didn’t know police wanted to know everything, only the “bad stuff.” She was ashamed, she said: “It’s an embarrassing thing to say.”

DeCoutere fared even worse. The woman who inspired #IBelieveLucy appeared blasé toward Ghomeshi on the stand. She denied having any romantic interest in him, a statement detonated by the defence’s presentation of multiple emails she had sent Ghomeshi hours and years after the alleged assault. These went from expressing a desire to “f–k your brains out” to telling him “I think you are magic.” In a handwritten letter written days later, she wrote, “I love your hands.”

Courts understand that delays in reporting sexual assault are common—and, as both the defence and Crown noted, it’s not unusual for victims of sexual assault to communicate with an abuser, to try to smooth over perceived misunderstanding, even to have conflicted feelings. The problem lay not in what the witnesses did after the assault, but in what they told (and didn’t tell) police and the court about it. That message was delivered too late to benefit complainants in the Ghomeshi trial. But it could be seen as the beginning of a new awareness for many others.