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Ghomeshi matter: lessons learned and the need for more education

With the second Jian Ghomeshi criminal proceeding over, after the former CBC star signed a peace bond and apologized, Toronto criminal lawyer John Rosen says it appears to be a favourable resolution for both the complainant and the accused.

“The Crown would never have made this deal unless they consulted with the complainant and the complainant was onside as was evidenced by her subsequent comments to the media after court,” he tells AdvocateDaily.com. “If the complainant objected, the Crown would have proceeded to trial.”

Rosen, partner at Rosen Naster LLP, tells the CBC that it would likely have been a logical choice for Ghomeshi as well, given the expense of ongoing litigation.

"Always remember that principle costs principal — and that's really what's going on," he tells the public broadcaster. "This puts an end to the bleeding."

One of the most high-profile sexual assault cases in Canadian history ended quietly after Ghomeshi signed a peace bond in which he promised to have no contact with Kathryn Borel, the woman who accused him of sexually assaulting her at the CBC when they both worked there — she was an associate producer and he was the host. After signing the peace bond, the Crown withdrew one count of sexual assault. Ghomeshi apologized to her in court for his actions. 

Borel read a statement on the steps of the courthouse in which she outlined her allegations against Ghomeshi.

In an interview with AdvocateDaily.com, Rosen says Borel’s comments after court suggest that she was advocating to the court of public opinion as opposed to a court of law.

“And that’s where the public gets confused,” he says. “The court of law looks at the evidence and the evidence can be tested in cross-examination." 

This is not the case with public statements outside the courtroom, he says. 

Rosen says the fact that this matter was severed from the other sexual assault and choking charges against Ghomeshi that proceeded to trial earlier this year indicates there was something different about the matter involving Borel.

“This one wasn’t used as similar-fact evidence in the other case to bolster the other three complainants so there was a significant difference,” he says. 

In deciding to resolve the matter with a peace bond and not to prosecute, Rosen says the Crown may have had concerns about a reasonable prospect of conviction.

“When the prosecution is dealing with cases where the complainant is the main witness, the Crown does two things,” he says. “The first thing they do is they look at their case to determine whether there is a reasonable prospect of conviction. If there isn’t, the Crown is expected to either withdraw the charges or stay the proceedings. And in making that assessment, they also consult with the personal complainant to see whether that person wants to go through the rigours of a trial, to be examined and cross-examined, as well as to go through the emotional pressure of remembering past events and to deal with the uncertainty of the outcome of the case.”

Rosen says that while some complainants say they don’t want to go through this, it’s not binding on the Crown.

“It’s just a factor,” he says. 

Rosen says there are cases where the Crown will proceed with the trial anyway because it’s in the public interest to do so. 

He says Ghomeshi’s first sexual assault trial — where the former CBC host was acquitted of four counts of sexual assault and one count of choking — highlighted a need for more public education about how Canada’s justice system works. In that matter, Judge William Horkins of the Ontario Court of Justice issued a scathing reproach to the three complainants involved saying they lied and deliberately withheld information from the police and the court.

Rosen says the lesson to come out of this is that: “If you’re going to complain, you tell the truth, the whole truth and nothing but the truth — don’t hold anything back.”

Publicity around that case induced calls from some legal experts, women’s rights groups and others to change how the justice system handles sexual assault allegations; some said there was a need to establish special rules to deal with those types of allegations. 

Rosen says such change would be very shortsighted, fundamentally wrong and unfair. 

“In a free and democratic society, we don't shortcut the way to jail — that’s really what it comes down to,” he says. “Lots of people are going to jail for sexual assault. Judges are hearing these cases and they are convicting based on the evidence before them.

“There are also special rules of procedure and evidence already in place to ensure that sexual assault trials aren’t permeated with stereotypes, that complainants are protected and that the trials are fair to both sides.”

Rosen says the problem is that many people don’t understand the justice system and the fact that it is designed to protect everybody — the complainant, the accused and society in general.

“All those people calling for special rules for sexual assaults, should they be accused of a crime, would be thankful that the system is set up the way it is with the onus of proof on the prosecution, the right to challenge evidence and to cross-examine witnesses,” he says. “It doesn’t matter what the charge.”

Rosen says it’s interesting to note that the critics of the way the system currently works haven’t proposed viable ways to fix what they are calling a problem. 

“The hue and cry is so far removed from reality, it’s sad,” he says.

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