Reflections on the Jian Ghomeshi Trial

As a criminal defence lawyer in Toronto, it's been hard not to take notice of this case. Most other cases in the news argued by lawyers outside my law firm generally don't hit my radar. However, this case is different. Perhaps because it has caught the attention of many in the legal community, or the staying power it's had in the media or both. While I did not attend the trial and have received my information like most, second hand - I would not want to prognosticate on the outcome. Even if I had been there for some of the evidence, after many years of experience I appreciate that oftentimes evidence can be interpreted differently, by different people. I think it's fair to say, no one really knows what is going on in the Judge's mind. 

However, observing this case from a distance, several working principles for criminal lawyers have been illuminated for the public about our criminal justice system. Indeed, some of these principles apply to life as much as they do to our legal system. That is why, I surmise, judges and juries are required to apply common sense when analyzing evidence and cases they are trying. When you sweep away all the law, procedure and drama of the courtroom, the real issue is often how to see a case and its evidence through the lens of common, human experience:

1. Allegations are just that, allegations. They don't become true simply because someone makes them. Anyone can say anything about anyone at anytime. The whole purpose of the trial process is to determine if they are true. 

2. The presumption of innocence protects all people charged with any crime. This is essential as the allegations made need to be proven in court. This presumption always protects an Accused unless and until the prosecution is able to prove a case beyond a reasonable doubt. What struck me about the Ghomeshi case was that he was summarily found guilty in the court of public opinion. The vehemence with which the public decried Ghomeshi’s guilt compels us to step back and use the rational parts of our minds to exercise the presumption of innocence. The presumption is there to fight against a "gut" feeling towards which we want to jump. This is due process, and is the bedrock upon which our legal system is built.

3. One side of the story distilled into allegations rarely bare themselves out in court. Most often, after hearing from live witnesses under cross-examination things become more grey. New and unknown evidence arises. Contradictions are made by witnesses. Other evidence may be called to undermine witnesses. While a witness' evidence may look convincing on paper when reading it, the actual witness when observed in the court live may come across in an unbelievable manner. It's that old expression: the truth is usually somewhere in between what opposing parties are saying. 

4. The more politically charged subject matter of the charges, the more the system needs to be on guard not to accommodate or capitulate to the prevailing zeitgeist at the moment. This does not just apply to the subject matter of the Ghomeshi case, but for all other kinds of cases whether terrorism, cruelty to animals, etc. The evocation of empathy, sympathy or anger is not the litmus test to a conviction. Evidence beyond a reasonable doubt is. Nothing else.

5. The Complainants in this case are not on trial. Yes, their conduct is the subject of cross-examination. One does not make an allegation in a vacuum. There seems to be a disconnect between some people's understanding and expectations of our justice system. When a person comes forward and makes an allegation against another person, their credibility and relevant behavior will be tested in court. Our system does not allow for untested or bald allegations to put people in jail. However, the Complainants are not facing charges, nor are they facing the prospect of having a criminal record. They are not looking at going to jail and 2 of 3 do not have their names published - by choice. While some may not like the way or extent to which the Complainants were questioned, they were not and are not on trial.

6. The defence lawyer’s gender is a red herring. Many in the press and on social media have criticized Ghomeshi’s attorney: how can a woman treat other women as the defense did in this case? Some even invoked Madeline Albright’s famous quip that "There is a special place in hell reserved for women who don’t help other women." Applying this to the Ghomeshi case is absurd. Any defence lawyer, no matter their gender, would have cross-examined the witnesses in the same way.

7. Cross-examination by a lawyer is the best way we have to get at the truth. Wouldn't it be great if we had some sort of machine we could hook a person up to and be 100% positive they were telling 100% of the truth? Unfortunately, we don't and until we do, cross-examination by a lawyer is the best known way to get at the truth. It may not always be nice or pleasant, but it is the most effective way to assess what happened and examine a witness' demeanor, reliability and credibility. It is part of our system and has shown initial allegations to be not worthy of belief over hundreds of years.

8. Our system believes it is better to have 9 guilty people go free than have 1 innocent person convicted. This is something my criminal law professor said my first day of law school. I have no idea if Mr. Ghomeshi is guilty or not. What I do know is that as a culture we find abhorrent the notion that someone should be punished for something they did not do. That is antithetical to all the safeguards we have built into our system. It is bedrock of our justice system and intuitively part of every human being's notion of justice.