Here is a cross section of some of the media attention on the Ghomeshi trial to date and a few comments on how they either missed the mark or hit the bulls-eye.
WHACKING? REALLY??
In the February 2, 2016 edition of the Ottawa Citizen Madeline Ashby wrote about her disappointment at Marie Henein’s defence tactics (http://goo.gl/hEgXeu). She used the word “whacking”, a term that doesn’t ring within criminal defence lawyer circles. More importantly, Ms Ashby implies Marie Henein of betraying women by employing the “same old tactics.” This trial isn’t about feminism. What if Ghomeshi’s lawyer was a man? There is no betrayal of feminism by Marie Henein.
Here’s the thing. Marie Henein’s professional responsibility is to her client. She discharges that responsibility by making use of every lawful means to diminish the Crown’s case, including discrediting adverse witnesses. Witness credibility is everything in a criminal trial. Inconsistencies in a witness’ testimony may mean he or she is lying or it may simply be a demonstration of the frailties of memory. But it cannot leave a court with much faith in the value of the witness’ testimony, and therein, a reasonable doubt is raised.
WHY PRESS SCRUMS ON THE COURTHOUSE STEPS ARE A BAD IDEA
Gillian Hnatiw is Lucy DeCoutere’s lawyer. She acted for Ms DeCoutere in responding to a media application for access to certain court materials. That is Ms Hnatiw on the front page of the Saturday Star on February 6, 2016 (http://goo.gl/oZ3rgJ). Ms Hnatiw says DeCoutere’s conduct after the event have no bearing on the truth. Let’s be clear about this. Yes, it does.
There are two defences to an assault charge. One, it didn’t happen, or two, if it did happen, the other person consented to the conduct. If Lucy DeCoutere’s conduct after the event is inconsistent with the Crown theory that there was no consent, then the Crown may not be able to prove the offence beyond a reasonable doubt. If Marie Henein did not pursue this avenue of questioning, we probably wouldn’t consider her competent.
Ms Hnatiw is a good lawyer, a partner at Lerners where she practices commercial litigation, professional regulation, health law, personal injury and class actions. But she’s not a criminal defence lawyer and complainants neither require nor are entitled to representation at criminal trials. Among other things it raises the question of whether the complainant’s lawyer is influencing the witness. A complainant who is a witness at trial has one job only; answer questions truthfully. That’s it. Gillian Hnatiw’s presence suggests Lucy DeCoutere has another agenda.
SIX PAGES OF THE SATURDAY STAR ON GHOMESHI
Inside the February 6th Star there was a whole section dedicated to opinions about the Ghomeshi trial. Vinay Menon opined that Jian Ghomeshi’s silence speaks volumes (http://goo.gl/SEj7EB). Actually, it doesn’t. In common with any person charged with a criminal offence Jian Ghomeshi has an absolute right to silence. The Supreme Court of Canada has repeatedly confirmed the right, and more importantly, that a court cannot make anything of an accused’s choice to exercise the right.
Try this for yourself. Get charged with a criminal offence. Exercise your right to counsel by calling a lawyer of your choice. Across the board that lawyer will tell you to shut up. Shut up shut up shut up.
CRIMINAL LAW QUESTION? ASK A CRIMINAL DEFENCE LAWYER
Howard Levitt writes for the Financial Post regularly. He is a brilliant employment lawyer. He is a little notorious for being the guy who left his drowned Ferrari under the Lower Simcoe Street underpass during the July 2013 flood in order to make it to an important mediation in Ottawa. That earned him considerable credibility; that he put his client’s interests above his own to that extent. His opinion piece in the Financial Post on February 3, 2016 (http://goo.gl/6sTjnm) made important points, particularly in saying that Ghomeshi’s employment dispute with the CBC is unrelated to the criminal proceeding against him now.
But he got some things wrong as well, and that is perhaps because he is not a criminal lawyer.
First, no one wins in a case like this. The Crown never wins as its job is to do justice, not win. Ghomeshi’s life as he knew it is over – much of that is his own fault, and the complainants, particularly Ms DeCoutere, will never feel whole or vindicated.
Second, there is almost no availability in law for the defence team to raise “salacious revelations as to [the complainants’] sexual history”. The law doesn’t allow it except in narrow circumstances, primarily because it is not relevant.
Third, the route to an acquittal is not through technicalities, they really aren’t part of the trial proper. Rather, it is through raising a reasonable doubt that the Crown has proved the elements of an offence.
Last, Mr. Levitt said, “an acquittal would not necessarily mean Ghomeshi is innocent.” Actually, it would. The presumption of innocence, a cornerstone of Canadian law, means that if the Crown cannot prove a person guilty beyond a reasonable doubt, the person is innocent. That’s it. The answer.
THE REAL DEAL
The commentary on this trial that everyone should read is Breese Davies’ piece in the Toronto Star on February 2, 2016 (http://goo.gl/uc6g5b). Breese is a brilliant criminal lawyer. If you find yourself charged with something she should be high on your speed dial list. As should Marie Henein, by the way. In far better fashion than I Breese explains the challenge the Crown has in prosecuting this case and dispels myths about what happens to sexual assault complainants in court. Read it.
THE CBC GETTING IT RIGHT
Notwithstanding that it is difficult to see around the conflict of interest the CBC faces every time it runs a piece on Ghomeshi, last night’s Sunday Panel on The National presented a reasonably balanced and correct analysis of the Ghomeshi trial to date. It is worth watching. Go to the CBC website for that.
It is not just the media and the twitterverse that has made the Ghomeshi trial a hot topic, the conversation within the criminal defence bar is engrossed by it. But what criminal defence lawyers almost universally talk about is how the commentary is wrong. Perhaps this is an opportunity to make this a learning moment.
Criminal defence law has a very simple aim – not guilty. Getting to not guilty rarely includes earth-shaking witness stand revelations. Rather it is careful, step by step chipping away at the Crown’s case against the defendant. Marie Henein has been doing a lot of chipping. If I was the Crown Attorney on Ghomeshi, I would have spent time this weekend reviewing the evidence of the third complainant and considering whether or not to continue the prosecution.