Celebrities, Crime, Trials

A Celebrity On Trial For Kinky Sex Beatings

The courthouse steps were jammed with reporters and cameramen trying to get an early quote from the silent and sullen-looking celeb.

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Canada View From Up North I’m not going to call it the “Trial of the Century”, but it’s fair to say the highest-profile trial in Canada in a Cosby’s-age commenced on Monday. Yes, earlier this week our favourite whipping boy, Jian Ghomeshi, finally entered a Toronto trial court with his lawyer/shark, Marie Henein, at his side. In keeping with the international public interest in Ghomeshi, the courthouse steps were jammed with reporters and cameramen trying to get an early quote from the silent and sullen-looking former broadcaster. At least half a dozen cops had to help Ghomeshi and his legal team through the throng of media so he could face justice.

For those who don’t know, here’s a quick summary of Ghomeshi. Up until being fired for the type of misconduct that would eventually lead to this trial, Ghomeshi was a rock-star radio personality at CBC, Canada’s public broadcaster. He hosted a show called “Q,” where he interviewed a wide range of celebrities. I often listened to his show and think he’s one of the best interviewers I’ve ever heard.

In an earlier stage of his life, Ghomeshi was a boy-bander with a group called Moxy Fruvous—a cute band that made some cute music.

Essentially, Ghomeshi has been a celebrity his entire adult life.

He also freely cops to some interesting sexual proclivities — Fifty Shades of Jian-type proclivities, only a little rougher maybe. And lacking in “safe” words. He says it’s always consensual. Since 2014, more than a dozen women have come forth to disagree. They allege that Ghomeshi assaulted them without consent during what they thought were supposed to be vanilla romantic encounters. One woman, for example, claims he dragged her to her knees and punched her in the face three times with a closed hand. Without asking first.

The police eventually laid four counts of assault, and one count of overcoming resistance by choking, against the former broadcaster. The overcoming-resistance charge carries a potential life in prison—yikes.

For the next nearly three weeks, Ghomeshi will face his accusers in open court. A publication ban, however, prevents the release of any of the accusers’ names.

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There has been tons of media coverage during the lead-up to the trial. Lots of reporting on his background, his kinkiness, his narcissism, etc. But, not enough talking about the most important things to lawyers—the legal issues, the trial strategy and the potential outcomes. Thus, I thought it would be fun to reach out to a few criminal lawyers to find out what they think is the most interesting part of the case.

Criminal Lawyer #1: Daniel Brown, Toronto

Most Interesting Aspect of the Case: Can the Crown win an application to allow similar fact evidence?

Daniel says that one of the things the Crown is going to do is to try to link the complainants together as “similar fact evidence”. In the he-said/she-said world of sexual assault, there are generally no witnesses other than the accused and the accuser. Thus, who do you believe? And, will you put someone in jail when there is little to corroborate the victim’s testimony?

But, what if there are many victims and they all tell the same story? What if all the victims independently say the accused dragged them to their knees and punched them? Doesn’t that bolster the accuser’s credibility, even if it’s still he-said/she-said?

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Well, the fact that a person committed sexual assaults in the past is not normally admissible to prove the current case. Daniel says it’s presumptively inadmissible for a good reason: we want cases decided on their own merits. Just because you sexually assaulted someone in the past does not mean you did it again, right? It’s very prejudicial to the accused for a jury to hear about the accused’s past similar bad acts. It could unduly influence a jury and lead to wrongful convictions. That’s the rationale behind denying similar fact evidence.

In very rare circumstances the Crown Attorney can apply to the court to rely on previous bad conduct to help prove the charges before the court. In order to do this the allegations must be so strikingly similar that they have a heightened evidentiary value to them. The basic question is, does the accused have a particular M.O. that’s so unique it heightens the witnesses’ credibility by hearing that other complainants have been assaulted in a strikingly similar manner?

Thus, in the Ghomeshi case, the Crown will ask the judge to look for similarities in the type of allegations made by the various victims, similarities in the way the alleged crimes were committed.

Balanced against this is the concept of “collusion”. This is the idea that the victims have influenced each other’s stories. That’s the concern in the Ghomeshi case because of the extensive media coverage.

If the judge finds a pattern of strikingly similar assaults against multiple victims and concludes that each victim arrived at her account independently (i.e., it was not influenced by reading the accounts of other victims), he can admit the similar fact evidence. Presumably this will make it easier for the judge to convict.

That’s where Marie Henein comes in. Complainant #1 went on the stand Monday. On cross-examination Henein started methodically picking apart this witness’s testimony. Henein, for example, confirmed that Complainant #1 had read some of the other complainants’ accounts before coming forward to make her own complaint. Henein also exposed gaps and discrepancies in the complainant’s memories, all in attempt to discredit the complainant and make it more difficult for the Crown to win an application to allow damaging similar fact evidence.

All in all, a cool legal issue and strategy worth keeping an eye on as the trial progresses.

Criminal Lawyer #2: Anonymous

Most interesting aspect of the case: Defence lawyer resources.

Anonymous thinks the most interesting part of the case is the resources Marie Henein’s team has. He believes that Henein will have used private investigators and researchers to explore the background of each witness. This is rare in Canadian trials. Anonymous is interested in seeing how Henein uses the information she digs up during cross-examination and wouldn’t be surprised if Crown is hearing a lot of information from the witnesses on cross-examination for the first time. He thinks Henein will lob many bombshells.

Let’s hope. Who doesn’t love a trial full of bombshells? Okay, so the Crown doesn’t love it, but everybody else does.

Criminal Lawyer #3: Nathan Gorham

Most interesting aspect of the case: Reporters live-tweeting the proceedings.

Nathan thinks one of the most interesting things is the live tweeting—how journalists have been sending out living tweets, even to the point of sending out real-time tweets of questions and answers between counsel and witnesses. This raises interesting issues about law and technology and whether Canadian criminal courts are out of step with the evolution of technology. In particular it has ignited a debate about whether Canadian courts should embrace television cameras in court, including live streaming of court cases.

The problem with tweeting is that it is difficult for readers to understand the full context and to hear the tone and the other dynamics that are in play in the courtroom. This is important in the Ghomeshi case because Canadians are watching the case both for interest about what’s going to happen to him but also to assess the overall fairness of the criminal justice system in sexual assault cases.

Twitter followers may be drawing inaccurate conclusions towards issues of fairness, especially the fairness towards victims of sexual assault. Nathan thinks it’s impossible to judge the issue of fairness to the victim through a review of tweets.

The potential benefit of allowing television cameras into the courts is it will allow the viewers to hear the tone and tenor of questions and allow them to make a much better assessment of whether the victim is being treated fairly or not and, ultimately, whether justice is being done.

Very interesting intersection of law and technology and something that Canadian criminal courts really need to put some thought into going forward.

That’s the View From Up North: Have a great consenting week.

Steve Dykstra is a Canadian-trained lawyer and legal recruiter. He is the President of Steven Dykstra Law Professional Corporation, a boutique corporate/commercial law firm located in the greater Toronto area. You can contact Steve at steve@stevendykstralaw.ca. You can also read his blog at stevendykstra.wordpress.com, follow him on Twitter (@Law_Think), or connect on LinkedIn (ca.linkedin.com/in/stevedykstra/).

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