Ghomeshi acquittal a “win” for Canadians: Harnett

The acquittal of former CBC broadcaster Jian Ghomeshi is a “win” for all Canadians, Toronto criminal lawyer Aaron Harnett tells AdvocateDaily.com.

“In a high-profile case there may be pressure on a trial judge to erode the principles that protect all Canadians from weak or outright false allegations,” explains Harnett. “In this case the judge stated the principles and acted in accordance with them and in so doing reaffirmed the important safeguards that exist for all of us. “

Ghomeshi was acquitted Thursday on all charges of sexual assault and choking following a trial that sparked a nationwide debate on how the justice system treats victims.

Ontario court Judge William Horkins said he simply could not rely on the three complainants given their changing and shifting memories and evidence that at times strayed into outright lies.

All he had to go on — as is usual in sexual-assault cases ­­— was the complainants’ credibility, which he said cross-examination showed to be sorely lacking.

“The decision was the only legally supportable one available to the judge,” notes Harnett. “This judgment doesn’t fail alleged victims, it protects them as it does all Canadians against weak allegations which could destroy their lives as much as it would destroy an accused’s life.”

“What is troubling is not the lack of clarity, but the shifting facts from one telling to the next,” Horkins said of one of the three complainants.

“In cross-examination, the value of her evidence suffered irreparable damage,” he said of another of the witnesses.

The former CBC radio host had pleaded not guilty to four counts of sexual assault and one count of overcoming resistance by choking involving three women. All three women testified they were being romantic with Ghomeshi when he briefly turned violent in incidents dating to 2002 and 2003.

As to the suggestion that the decision is harmful to women’s rights, Harnett says, he has “defended women against false or unsubstantiated weak allegations and they benefit from the same presumptions and protections as men.”

Ghomeshi’s defence argued the witnesses lied during testimony about their interactions with him and so were not credible.

Horkins agreed, at various times describing the women as having lied, been manipulative, and hiding pertinent information about their flirtatious and at times intimate contact with him after the alleged assaults.

“There is no smoking gun,” the judge said. “There is only the sworn evidence of each complainant.”

He said he couldn’t fault their imperfect memories, but stressed their “suppression” of evidence and “deceptions” under oath made it difficult to trust them.

“The act of suppression of the truth will be as damaging to their credibility as a direct lie under oath,” Horkins said.

Harnett tells the online legal news outlet that he wasn’t surprised by the decision. And he believes the separate case Ghomeshi still faces in June on one count of sexual assault will proceed.

“Each set of allegations will be weighed in accordance with its own unique circumstances and I have no reason to believe the other matter is tied to the narrative in this case,” says Harnett.

The case showed the need for vigilance about the false assumption that sex-assault complainants are “always truthful,” Horkins said.

However, he also stressed the acquittal was not the same as asserting the events in question never happened.

Ghomeshi, 48, who didn’t testify, showed little emotion at his two-week trial last month.

Horkins stressed the presumption of innocence in a criminal case is “not a favour or charity” and conviction requires “proof beyond reasonable doubt.”

At trial, the testimony of his three accusers and their cross-examination by Ghomeshi’s high-profile defence lawyer Marie Henein led to moments of drama.

The first complainant testified that Ghomeshi suddenly yanked on her hair when they were kissing in his car in late 2002. A few days later, she said he abruptly pulled her hair while they were kissing in his home and started punching her in the head.

The second complainant, actress Lucy DeCoutere, the only woman who can be identified in the case, testified Ghomeshi suddenly pushed her against a wall, started choking her and slapping her face when they had been kissing in his bedroom in the summer of 2003.

The third woman testified that she was kissing Ghomeshi on a park bench in 2003 when he suddenly bit her shoulder and started squeezing her neck.

Under cross-examination, however, the trial learned that the first women sent friendly emails and a bikini photo to Ghomeshi after the assaults, asking him to contact her. She said she sent the emails as “bait,” so she could demand an explanation for the alleged assaults but also testified that she didn’t remember the emails when she spoke with police.

During DeCoutere’s cross-examination, Henein produced an email the actress sent Ghomeshi hours after the alleged assault in which she expressed a desire to have sex with him. She also produced a hand-written letter the actress sent him days later that ended with the words: “I love your hands.”

The third complainant acknowledged only under questioning from Henein that she had deliberately misled investigators by not initially telling them she had a sexual encounter with Ghomeshi days after the alleged assault.

“(She) was clearly playing chicken with the justice system,” Horkins said. “She was prepared to tell half the truth for as long as she thought she could get away with it.”

Harnett says he thinks the case generated a tremendous amount of interest not just because “he’s a celebrity on trial, but because it has given Canadians an insight into the workings of the justice system that was manageable. They were able to watch the arc of it from beginning to end.

“In many of the cases that make the front pages of the media we see only a snapshot of a long plot arc. In this case, because of its relatively short narrative, Canadians who are interested could observe the entire process and get a very solid feel for what was taking place,” says Harnett. “This was a short story not a novel.”

And he believes that “careful observers of this case will come away feeling we have a justice system worth being proud of.”