The commentary by two University of Victoria law school professors Gillian Calder and Rebecca Johnson (“Ghomeshi case raises disturbing legal issues,” April 5) criticized the judge and reasons for judgment in the Jian Ghomeshi case. It suggests that “words matter” and that “the adjudication of the physical harm done to these women without their consent is erased” by the judgment.
While the law professors pay lip service to the presumption of innocence and the appropriateness of a high standard of proof in criminal cases, the balance of their comment suggests that the judge in this case was insensitive to inequities in society and the nuances of human behaviour.
The judge’s reasons in this case demonstrated neither insensitivity nor a failure to understand human behaviour.
If, as the authors of the commentary imply, the judge was to start from the proposition that the accused physically harmed the complainants, this would be to presume guilt. If our legal system were to manifest sensitivity in this way, there would be no point in conducting trials at all. We could simply move on to sentencing people accused of committing certain crimes.
The experienced trial judge in the Ghomeshi case did not say “women who survive violence, but struggle to tell their stories with consistency, are dishonest people, not to be believed.” This is an utter mischaracterization of the judge’s reasons. If there were ever an assertion that demanded a footnote, this would be it.
After spending 24 pages carefully reviewing and analyzing the evidence of each of the complainants, the trial judge concluded that “the harsh reality is that once a witness has been shown to be deceptive and manipulative in giving their evidence, that witness can no longer expect the court to consider them to be a trusted source of the truth.”
The trial judge carefully reviewed the specific instances of the complainants’ intentional deception. In multiple instances, the complainants were demonstrated to be clearly, and intentionally, untruthful when dealing with the police, the Crown and under oath in court.
Ghomeshi was not acquitted as a result of the complainants struggling to tell their stories with consistency. He was acquitted because there was overwhelming evidence that the complainants were struggling to be deceptive.
The judge did not conclude that physical harm to the complainants was erased by their deception. He was not satisfied that they were physically harmed at all.
While professors Calder and Johnson were, no doubt, motivated by a desire to ensure fair treatment for women who are, in fact, physically harmed, words do matter.
The reasons for judgment can be found on the Ontario Court of Justice website through this address: bit.ly/1ZwLnSm
Michael Mulligan is a Victoria lawyer.
