Ghomeshi judge has history of finding reasonable doubt: lawyer

Justice William Horkins's past rulings suggest a rigid adherence to the concept of reasonable doubt

TORONTO – The man tasked with deciding the fate of former CBC star Jian Ghomeshi has a history of finding reasonable doubt in cases with more conclusive evidence than what was presented at his sexual assault trial.

Justice William Horkins presided over the courtroom where defence lawyers hammered away at the three women who accused Ghomeshi of sexual assault. Defence lawyer Marie Henein and her team delivered devastating cross-examination, highlighting gaps in their memories and presenting photos or letters that cast doubt on their credibility.

Horkins’ past rulings suggest a rigid adherence to the concept of reasonable doubt. He dismissed charges against a sexual assault suspect in 2008 despite DNA evidence suggesting contact took place and an account that the judge himself described as resembling a “schoolboy’s fantasy.”

Even in cases where he has shown support for prosecution arguments, Horkins has been known to be strict in his interpretation of the law.

A 2013 decision saw him lambaste the Toronto Police Service for their practice of conducting arbitrary street checks against citizens and rule that the practice — known as carding — violated the Charter of Rights and Freedoms, but still find that a gun procured during one of those checks was admissible in a criminal trial. That gun was later used to convict the defendant.

Lawyers who have argued cases before Horkins say that degree of fine detail is typical of a judge with a reputation for being both meticulous and fair.

“He’s very detached, very business-oriented in the sense that he comes to work prepared and expects you to be prepared,” said criminal defence lawyer Corben Cawkell with Hicks Adams in Toronto. “The phrase ‘doesn’t suffer fools lightly” is often used. You should be prepared when you go in front of Horkins because he’s going to be the first to comment on it.”

Horkins has divided his 36-year career evenly between the two sides of the bench.

After being called to the bar in 1980, he worked as both a Crown and defence lawyer for 18 years before being named to the Ontario Court of Justice in 1998.

Since then, Cawkell said Horkins has become known for examining not just the individual cases before him, but the broader systems in which they play out.

In 2007, for instance, the Crown attempted to place Cawkell’s client under community supervision after he had served his complete sentence for a violent offence. Horkins dismissed that application, but also issued pointed remarks about the ways in which people are evaluated for the risk they may pose to society.

He concluded that police officers are not best equipped to make such assessments, saying that task should be left to forensic psychologists and psychiatrists instead. Cawkell said that standard has been widely applied ever since.

He also criticized the slow pace at which cases moved through the system, according to Cawkell.

“He was unimpressed with the idea that an application could be brought without any criminal allegations, that it could take years to be heard, and throughout that time effectively the individual was under conditions that mirrored what they wanted without having to actually get a ruling on it,” Cawkell said. “He would look at the broader picture and look at the implications of the overall process.”

Horkins’ discontentment with the system was revealed more sharply in January 2010 when he dismissed charges against a nursing home employee accused of assaulting a patient on the ground that the wheels of justice were turning too slowly.

“Undue delay erodes public confidence in the criminal justice system. The charter recognizes the truth in the old adage ‘justice delayed is justice denied,'” he wrote in the ruling.

Fairness lies at the heart of his general reputation in legal circles, according to both Cawkell and another lawyer who has argued in front of him who wished not to be named.

That fairness, Cawkell argued, has already been displayed at the Ghomeshi trial when Horkins denied the media’s request to view a provocative photo of one of the Crown’s witnesses clad in a bikini. In doing so, Horkins referenced the court’s role as a “gatekeeper” and the “societal interest” in protecting the privacy of sexual assault complainants.

At the heart of the Ghomeshi trial, however, lies the issue of witness credibility.

It’s a subject Horkins tackled directly in the 2008 sex assault case, in which two women accused a man of forcing himself upon them while they were sedated and while the man’s wife and sister slept upstairs.

Horkins delivered a scathing assessment of the defendant’s account of events while praising aspects of the complainants’ testimony for being articulate and forthright.

“The version of events given by the accused and his supporting witnesses quite frankly, and very bluntly, strike me as somewhat incredible,” Horkins wrote in his judgement. “It reads like a schoolboy’s fantasy and seems to conveniently contain just sufficient admissions against interest to answer the undeniable forensic evidence of sexual contact, and no more.”

Yet in the end Horkins dismissed the charges, citing instances in which the evidence was not conclusive enough to eliminate all possible doubt as to the man’s innocence.

He laid out his mode of evaluating such cases in that same 2008 judgment, offering a prospective clue as to his approach in deciding Ghomeshi’s fate.

“This is not simply a credibility contest as between the complainants and the accused,” he wrote. “The measuring stick of a criminal prosecution is proof beyond a reasonable doubt.”