While we await final submissions and the verdict on the Jian Ghomeshi trial, there are several features of the case that are worthy of comment:
- When someone wants to make an allegation of sexual assault for conduct that occurred a long time ago, it’s not always a good idea to go to the media first. While public scrutiny might increase the likelihood of police authorities feeling pressured to initiate charges, the version given to the media might provide fodder for cross-examination by the defence at trial. And the more times the story is told, the greater the potential for inconsistencies;
- The person making the allegations better “come clean”, and fully, at that, with the police and Crown about the full scope of the relationship with the accused, including subsequent contact and communications. Failure to share the entirety of the picture can result in confrontation at trial with damning materials like emails, photos and letters, some or all of which might just be maintained for whatever reason by the other party;
- Complainants regarding the same suspect should be cautious not to communicate with one another, whether prior to reports being made to the police or even afterwards. Sharing the same counsel and publicist will undoubtedly give rise to the suspicion that they aren’t acting independently of one another, thereby seriously undermining any weight which a court might give to their evidence, particularly in the context of “similar fact” evidence which could otherwise be used to support the evidence of each;
- If sufficient damage can be done to the credibility of one or more complainants, the accused might never have to take the stand. The court will have the option of rejecting the evidence of the witnesses, whether as unreliable or unbelievable, with the result that the Crown will not be able to prove guilt beyond a reasonable doubt;
- It is the obligation of defence counsel to vigourously challenge the evidence of any and all Crown witnesses. No-one takes the witness stand with the presumption he or she should be believed, whatever the allegations, and everyone can be confronted under cross-examination. The court will stop unfair conduct by counsel but short of that, it’s an essential element of the trial process for testimony to be “tested”;
- No matter how much pretrial publicity might be given to a particular case, it’s only at the trial that the full picture will come out. It’s never a good idea to jump to conclusions about someone’s guilt or innocence based on media accounts;
- If it turns out that Mr. Ghomeshi is found not guilty, I doubt that anyone will turn his or her mind to the lack of any way in which he might be compensated for being wrongly (or, at the very least, unsuccessfully) prosecuted. How he might ever regain his reputation, recover from the stress of trial proceedings or be reimbursed for legal fees is unlikely to be the subject of comment. That, too, is a reality of the criminal justice system.
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