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Comment: Ghomeshi case raises disturbing legal issues

The R. vs. Ghomeshi judgment begins with the word “warning.
Ghomeshi Trial 20160324.jpg
JIan Ghomeshi was found not guilty, but two members of the University of Victoria's law faculty are concerned about the reasons behind the verdict.

The R. vs. Ghomeshi judgment begins with the word “warning.” And although the warning is about the publication ban for two of the complainants, it might as well be an image of a dragon on a 14th-century map, scaring off those about to navigate the words of the judgment due to dangers that lie below the surface.

The conclusion is stark. Justice William Horkins holds that the “the bedrock foundation of the Crown’s case is tainted and incapable of supporting any clear determination of the truth.” The judge couldn’t render a guilty verdict on the evidence presented and the testimony given.

We are grateful to work in a justice system that safeguards the presumption of innocence and demands the highest standards of proof. But it is the reasons given for the judgment that rest so uneasily with us. The adjudication of the physical harms done to these women without their consent is erased, replaced by a set of reasons that fails to show them compassion or respect their inherent dignity. The judgment says women who survive violence, but struggle to tell their stories with consistency, are dishonest people, not to be believed.

In assessing how to step back into the classroom with this judgment in hand, we found ourselves revisiting two quite different sources. The first is R. vs. R.D.S., a Nova Scotia decision from the early 1990s by Justice Corinne Sparks, taking systemic racism in her community into consideration when weighing the inconsistent statements made by a white police officer in the trial of a young black accused.

The second is Birdie, a novel by Canadian legal academic Tracey Lindberg, where Cree legal traditions of healing and respect are offered to the protagonist in the face of deep harm.

Using these sources, we offer three thoughts on the trial of Jian Ghomeshi.

First, the words of this judgment matter. In Ghomeshi, there is an animus underlying the conclusion that it “is impossible for the court to have sufficient faith in the reliability or sincerity of these complainants.” The way this decision is written perpetuates some of the longest-held stereotypes about female complainants in sexual assault cases. Yes, their stories are messy. But, the court finds, since the complainants engaged in conduct “out of harmony with the assaultive behaviour ascribed to [Ghomeshi],” they couldn’t be believed.

We know that a different way of rendering a legal judgment is possible. Sparks understood the racism in her Nova Scotia neighbourhood. The Crown’s case left her with reasonable doubt; still, her judgment offered respect as it took judicial notice of societal context. Likewise, Horkins’ reasons needed a stronger acknowledgment of the sexism experienced by sexual-assault survivors in Canada today.

Second, memory is affected by trauma. A Canadian criminal trial with its protections and rigidities is not the best place for assessing complicated human stories. What it means to seek justice through prosecution is complicated; conviction and incarceration do not offer the systemic change that inequities in society demand.

And, of course, credibility of witnesses in this context is critical. But how we assess credibility has to be linked to a nuanced appreciation of human behaviour and responses, in all of their complexities.

The recent work of Canada’s Truth and Reconciliation Commission brings this into focus. Those who work within the law know that survivor accounts of intimate violence will never follow some rote legal script for memory and truth.

Finally, to change the adjudication of sexual-assault law, the human actors need better training.

Part of the solution might come from the experiential work happening in Canadian law schools today; the ways that students learn that law can and should be practised differently.

Another part might come from recognizing that this is a country with common law, civil law and indigenous legal traditions; that there is much to draw upon to better work with survivors of intergenerational and daily trauma seeking justice through law.

This judgment challenges us to pay due attention to the significance of vicarious trauma and the related need to work and teach with compassion and context. It also makes visible the need to be attentive to assumptions about perfect human behaviour, particularly in the context of sexual assault.

We hope that public discussion of the case shines a light on work still to be done on access to justice, and leads to positive change.

But until then: WARNING. No kidding.

Gillian Calder and Rebecca Johnson are members of the faculty of law at the University of Victoria.