Background

Jian Ghomeshi was the popular host of the CBC Radio One show Q. He became embroiled in a series of allegations of sexual abuse and sexual harassment which culminated in a high-profile sexual assault trial.

For most Canadians, the story began in October of 2014, when Ghomeshi wrote a lengthy Facebook post explaining that he had been fired from the CBC and claiming that this happened because of false allegations of sexual abuse from a jilted ex-lover. Ghomeshi said that he had had rough sex with this woman, but that it had always been consensual. He said the CBC knew he had done nothing wrong, but fired him anyway.

Soon after, Ghomeshi initiated a multi-million dollar lawsuit against the CBC. Meanwhile, the story expanded. Eventually somewhere between 8 and 14 women accused Ghomeshi of engaging in inappropriate and non-consensual sexual behaviour with them. Less than a month after his Facebook post, Ghomeshi dropped his lawsuit against the CBC and agreed to pay $18,000 to them for their legal costs.

The day after he dropped his lawsuit, Ghomeshi turned himself in because he had been charged with four counts of sexual assault and one count of overcoming resistance by choking. There were three complainants. Two months later, Ghomeshi was charged with another three counts of sexual assault relating to three more complainants. In the end, Ghomeshi was only ever tried for the charges relating to the first three complainants.

The Court of Public Opinion

The public atmosphere after the allegations against Ghomeshi were a prelude to the #metoo movement that would explode in popularity following the discovery of years of sexual improprieties perpetrated by movie mogul Harvey Weinstein. The public largely disbelieved Ghomeshi’s initial attempt to try to claim he was being smeared by a single jilted ex-lover after so many more women came forward to complain about his behaviour.

The court of public opinion had clearly decided Ghomeshi was guilty, so it was a huge disappointment to many that he was acquitted of all charges at the end of his trial in 2016. However, to anyone with a reasonably comprehensive understanding of the criminal law and the facts of the case, the “not guilty” verdict was unsurprising.

The Criminal Law Standard

Unlike the court of public opinion, the criminal law requires proof beyond a reasonable doubt before anyone can be convicted of an offence. Untested allegations in the absence of any physical evidence is not enough to convict someone. But the testimony of witnesses can be sufficient to establish proof beyond a reasonable doubt if the witnesses are highly credible and reliable.

In fact, even a single witness can provide good enough evidence to meet the high burden of the criminal law. Crown prosecutors establish convictions every day on the strength of a single witness, especially in cases of historical sexual abuse (e.g. complainants who were abused as children). As long as the one witness is found to be sufficiently credible and reliable, a judge may be convinced beyond reasonable doubt of the accused’s guilt.

It’s a fundamental principle of criminal law that an accused person has the right to a fair trial, and to make full answer and defence. “Full answer and defence” means an accused has the right to test the evidence of the Crown’s witnesses.

The normal means of testing a witnesses’ evidence is to cross-examine them. That means asking them tough questions, and confronting them with any evidence that contradicts their testimony. If cross-examination reveals a witness isn’t credible or reliable about one or more key facts, then it can cast doubt on all of their testimony. That’s what happened with the complainants in Ghomeshi’s trial.

The Trial

All three complainants at Ghomeshi’s trial had met the police and Crown prosecutors numerous times prior to trial. In those meetings, they had each failed to fully disclose the facts surrounding their allegations of sexual assault against Ghomeshi.

Complainant L.R., for example, testified that she never contacted Ghomeshi after his alleged sexual assault against her. She said that after the incident she couldn’t stand to see him or hear him on the radio. At trial, Ghomeshi’s defence lawyer confronted L.R. with two highly flirtatious emails she had sent to Ghomeshi: one that L.R. had sent a year after the alleged sexual assault, and another she had sent six months after the first email. These emails severely undermined L.R.’s credibility.

L.R.’s credibility issues proved to be a general theme at Ghomeshi’s trial. On cross-examination, Ghomeshi’s lawyer showed that all three complainants had lied in their statements to the police and Crown. Since each complainant had lied, each couldn’t be trusted with regard to the substance of their sexual assault allegations. Therefore, the trial judge had a reasonable doubt about Ghomeshi’s guilt on each count.

To some, Ghomeshi’s trial revealed the limitations of the criminal law in bringing sexually abusive men to justice. To others, it was just a demonstration of the justice system’s high standard of proof, a well-founded standard that values protecting the innocent over punishing the guilty.

The Ghomeshi Amendments

As part of a broader criminal law reform project, Justin Trudeau’s Liberal government amended Canada’s criminal law to try to prevent someone in Ghomeshi’s situation from being acquitted in the future. They added s. 278.92 to the Criminal Code: the “Ghomeshi amendments”.

Section 278.92 of the Criminal Code now requires the defence to make an application to the trial judge before they can introduce into evidence any record relating to the complainant. At the hearing, the judge must take into account a number of factors (e.g. “society’s interest in encouraging the reporting of sexual assault offences”) before admitting the record into evidence. “Record” means any form of record that contains personal information for which a complainant would have a reasonable expectation of privacy. That will almost always include things like text messages and emails.

Had the new rules existed at the time of Ghomeshi’s trial, his defence lawyer would’ve first had to go through a hearing to obtain a ruling from the judge on whether L.R.’s old emails could be admitted into evidence. Only if the judge had ruled in Ghomeshi’s favour could his defence lawyer have then confronted L.R. with her old emails.

When the defence applies under s. 278.92 to admit a record into evidence, the complainant has a right to attend the hearing and to be represented there by their own government-appointed lawyer. This is the most important aspect of the amendment aimed at preventing a Ghomeshi-type situation. If the complainant can attend the hearing where the defence is applying to admit a record like one of the complainant’s old emails or text messages, the complainant gets to find out about the details of those records before they ever testify.

The Problem with the Amendments

The problem with the Ghomeshi amendments should be obvious. Since the complainant can attend the hearing on the admissibility of the records the defence intends to confront them with, they gain an opportunity to re-think their anticipated testimony and potentially alter it so it doesn’t get undermined by those records when they’re finally confronted with them.

In other words, the s. 278.92 procedure gives a lying complainant the opportunity to prevent the defence lawyer from exposing their lies. An accused’s lawyer has more difficulty effectively cross-examining a sexual assault complainant if the complainant knows in advance about any record the defence lawyer intends to confront them with.

Unsurprisingly, defence lawyers have challenged the Ghomeshi amendments on the basis that it violates an accused’s right to a fair trial, and to make full answer and defence. Those rights are enshrined in sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms, which is part of the Canadian constitution. The Charter’s constitutional status means that any law contrary to the Charter can be invalidated by the courts, or in some cases re-interpreted in a way that makes the law no longer violate the Charter.

The First Challenge to the Amendments

Surprisingly, the first reported constitutional challenge of the Ghomeshi amendments, R. v. F.A., 2019 ONCJ 391, was wholly dismissed by the judge. The judge in that case reasoned that since there already exists a rule that the defence must make an application to the trial judge before they can introduce evidence of a complainant’s prior sexual activity, the Ghomeshi amendments aren’t materially different from this already-existing rule. That rule, found under s. 276 of the Criminal Code, has already been constitutionally challenged and found to be constitutionally valid by the Supreme Court. As with a “Ghomeshi hearing”, the complainant can be present and represented by a government-appointed lawyer at a s. 276 hearing.

However, the reasoning behind creating a screening process for the admission of evidence of a complainant’s prior sexual activity is that before this process existed defence lawyers had much wider latitude to potentially humiliate a complainant about their sexual history, and to reinforce myths about sexual assault. Defence lawyers could ask questions like “well you slept with person X, didn’t you? And also person Y, right? You sleep around a lot, don’t you?”.

Essentially, prior to s. 276 defence lawyers could suggest that the complainant’s sexual history made it more likely that they consented to sexual activity with the accused. They could also suggest that a complainant with an extensive sexual history wasn’t credible because a promiscuous person is somehow generally “immoral”. Today it’s considered a pernicious myth that if someone has had many prior sexual experiences it somehow means they’re more likely to have consented to sex with someone they’re accusing of having sexually assaulted them, or that they’re generally more likely to lie.

In contrast to s. 276, the Ghomeshi amendments aren’t aimed at preventing a defence lawyer from asking highly personal and embarrassing questions, or from reinforcing myths about sexual assault. The judge in F.A. didn’t seem to appreciate this distinction.

The Second Challenge

The second reported constitutional challenge of the Ghomeshi amendments, R. v. R.S., 2019 ONCJ 645, was also dismissed by the judge. However, the judge re-interpreted the amendments to make them fairer to the accused.

The Ghomeshi amendments require that the defence must apply to have records admitted into evidence at least a week before the defence plans to use them on cross-examination. The judge ruled that the amendments should be interpreted to allow the defence to apply to admit the record during cross-examination of the complainant, or in other words at the last possible moment before the defence intends to confront the complainant with the record.

The R.S. decision fixes an important problem with the Ghomeshi amendments. A defence lawyer can get the complainant to commit to various answers during their testimony, then the lawyer can apply to the judge during cross-examination to have the records admitted into evidence before confronting the complainant with them.

In Ghomeshi’s case, if the amendments had existed as they’ve been interpreted in R.S., Ghomeshi’s lawyer would likely still have been able to demonstrate that the first complainant, L.R., was lying about never wanting to see Ghomeshi again. Assuming the judge would have ruled L.R.’s old emails were admissible, at the point in cross-examination when Ghomeshi’s lawyer would have made the application to admit L.R.’s old emails, L.R. wouldn’t have been able to undo her testimony without contradicting herself.

However, since L.R. and L.R.’s lawyer would’ve been allowed to be present during the hearing on whether L.R.’s emails should be admitted into evidence, L.R. would still have had an opportunity to take some time to think of a way to fix her testimony. In other words, Ghomeshi’s lawyer would’ve lost the element of surprise.

The Third Challenge

The third reported constitutional challenge, R. v. Anderson, 2019 SKQB 304, found that the Ghomeshi amendments were plainly unconstitutional. The judge in that case framed the issue as a contest between the accused’s right to make full answer and defence, and to have a fair trial, against the complainant’s privacy rights. The judge found that the complainant’s privacy rights simply didn’t weigh as heavily in the balance as they do when the defence wants to cross-examine a complainant on their prior sexual activity.

The judge in Anderson saw the Ghomeshi amendments for what they functionally are: a procedure that protects sexual assault complainants from being shown to have lied in their testimony. Indeed, cross-examination is sometimes the only way the defence can demonstrate the deficiencies in the evidence of a key witness. As explained above, If the complainant gets to be present during the defence’s application to admit into evidence records they intend to confront the complainant with, this allows a complainant who is fabricating evidence to improve their fabrications. It also removes the element of surprise.

As the judge said in Anderson, “These procedural screening requirements eviscerate the most valuable tool available to the defence in a sexual assault trial”. The judge appreciated that there is little else an accused can do to challenge the complainant’s evidence. The judge continued: “The nature of this offence is one that usually occurs in private, without any witnesses other than the complainant and the accused. Often, it is a case of “she said, he said” (or in this trial, “he said, he said”). The defence must be permitted to test the veracity of a complainant…”.

At the time of writing, no constitutional challenge of the Ghomeshi amendments has been decided by any provincial court of appeal, or by the Supreme Court. There have been no reported constitutional challenges of the amendments in British Columbia. None of the above decisions create any binding precedents on courts in BC. It’s likely just a matter of time before the issue goes all the way up to the Supreme Court.

Conclusion

The Ghomeshi amendments demonstrates the importance of not reflexively creating new law simply because a high-profile criminal case displeased the public. Legislation should be made with a view towards strengthening the principles behind a modern, democratic, and enlightened criminal justice system. It should be relatively free from public pressure, and certainly free from being influenced by the outcome of a single case.

When parliament chooses to legislate to score political points, it risks creating injustice. It also risks creating law that is embarrassingly unconstitutional. Thankfully, the courts have the authority to dis-apply unconstitutional laws, or declare them to be of no force or effect. But although the courts can fix bad law, it’s always better not to have created it in the first place.

If the Ghomeshi case ended up being deeply unsatisfying to the public, there’s a number of other areas to place the blame, rather than the framework of the criminal law as it existed at the time. For one, there’s the obvious question: why didn’t the complainants just tell the truth? For many, it’s improper to even ask this question because it might involve blaming the victim. The problem with that logic is that it begs the question. What if one or more of the complainants weren’t victims, hence why they weren’t truthful? Again, for many, even asking that question is improper because they feel that any claim of sexual assault must always be believed, no matter what.

Yet despite the shortcomings in the complainants’ testimony, it seems clear that there is a lot of smoke surrounding Ghomeshi regarding his sexual conduct over the years. After all, somewhere between 8-14 women claimed to have been sexually assaulted by him. It would be surprising if there wasn’t some fire underneath the smoke. But just because that might be the case, it doesn’t mean society should abandon the underlying criminal law principle that convicting the innocent is a bigger injustice than failing to convict the guilty. That principle is a mark of an advanced civilization. In other words, suspicion is one thing, proof is another, and we shouldn’t allow the former to become a substitute for the latter.

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