In defence of the Crown: the case of Ghomeshi.

in defence of the crown in ghomeshiThe Ghomeshi case has come to end.

Aside from the presiding judge, no one can be sure what verdicts lie ahead for him. Notwithstanding, this hasn’t stopped a flurry of commentators coming forward to express what they feel “went wrong” with the case.

How is it that Ms. Henein, through cross-examination alone, has seemingly unravelled the credibility of the complainants beyond reparation? How could it be that something like Mr. Ghomeshi’s guilt, which was all but a forgone conclusion in the Court of Public Opinion, may now be in jeopardy?

How is it that the Canada’s intricately legislated, judicially interpreted, and repeatedly tested legal system could hold so coldly stubborn in a bedrock of due process in this time of crisis for sexual assault victims? If there were not a time to bend legal rules and values to achieve an obvious end for the sake of justice, is this not the occasion? Does Justice need to sting so much to reach a result?

In assuming such injustice, where then does the blame lie? Who is to be held accountable for this supposed failure?

The blame game

From one media commentator that blame and accountability fall squarely upon the Crown.

This commenter appears unaccepting of a possibility that the two highly competent and respected Crown prosecutors could be taken by surprise through last minute revelations of the alleged victims. To this commentator, and many others, the only reasonable explanation for the witnesses’ catastrophic failure is inadequate preparation.

To the commentator referred to above, a former prosecutor herself, the notion that victims would allegedly collude, withhold information from police, (and seemingly from their own lawyers who would have advised them of the importance of such disclosure) appears to be inconceivable.

Perhaps it was simply a matter of imploring  the complainants to “…be completely honest with us…no seriously…ok, we really mean it now…it’s important.” would have readily exorcised these now freshly discovered omissions in a manner police investigators could only dream of.

To reinforce the position in her article, she quotes two anonymous armchair prosecutorial quarterbacks in agreement.

According to this commentator:

It was the Crown’s job in preparation to get that out of them ahead of time, to prevent exactly what happened. In their defence, the women say they didn’t think the bits they skipped were relevant and they weren’t asked to elaborate. That becomes a really jagged little pill to swallow, given the Crown’s expected standard of witness preparation.

Ah, if only full disclosure came to litigators so easy. If only lawyers were not often required, as was the case here, to painfully extract important details by meticulous and unforgiving cross-examination.

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If only…

If only the Crown and police had subjected the alleged victims to the widely decried tactics of defence lawyers in advance so as to preempt the public display of their omissions. If only the Crown had been able to read minds, or properly refresh allegedly forgotten memories about emails and letters sent years ago – something that some might wager as long erased and therefore immune from confrontation.

If only they had tackled, instead of weaved at the State Championship. If only…

In the course of preparing our clients and witnesses, lawyers operate within the levels of disclosure they provide us. If a witness is not aware of, or has forgotten prior statements that may form the basis of an impeachment, we can’t expect any lawyer to triage this. Beyond the anticipation of the obvious, we too are limited by what witnesses tell us. We are like doctors trying to diagnose symptoms of incredibility without the benefit of anything like blood tests, MRIs, or x-rays trying to understand what the underlying issue of concern is.

Contrary to popular opinion, lawyers are rarely in a situation where they know every detail of what happened and so our preparation of them can be limited as a result. Perhaps its shocking to some, but those people motivated to exaggerate, omit, or deceive do not exclude their own counsel from such proclivities.

We are limited in practice, ethics, and proper witness management to accept witnesses are acting candidly with us. Imagine otherwise and a Crown telling a victim in preparation “I don’t believe you.  Tell me more.  You are holding back things. This is important, stop lying.”

We are not judges or investigators of our our witnesses or clients.  As lawyers, we are entitled and expected to operate on a premise of candour when dealing with our own clients or witnesses.

Crown Attorneys are limited to what evidence is known, not what is created through preparation.

Crown Attorneys, like any other litigator, must advance their case through the medium of human beings. All human beings, accused or alleged victim, defendant or plaintiff, police or civilian – have their frailties.

Every practicing trial lawyer knows this. Every practicing lawyer also knows that there are always going to be inconsistencies, implausibilities, and incongruities in a witness’ evidence. Every trial lawyer is trained to expose them for all they are worth. The more important question though is what significance such shortcomings hold, if any, in assessing their reliability or credibility.

Now take such inherent imperfections in witnesses and add weaknesses of human memory. Then add motivations to fabricate, omit, or exaggerate. This is not exceptional to any case, any witness, or any victim. To make matters worse, as it was the case here, mix in the possibility of collusion of witnesses with like-minded evidentiary temptations and we wind up with the potential to be “eviscerated by defence counsel” as so aptly put by said commentator.

There is no such thing as a perfect witness and no witness is impervious to impeachment in some manner. Unless, of course, they are made perfect by spending a lot of time in the proverbial woodshed. Needless to say, this is not the sort of perfection lawyers ought to strive towards, let alone a Crown Attorney advancing a case with the public good in mind.

Fortunately, Courts do not ask for perfection, they ask for truthfulness.

The impending storm of impeachment was not on anyone’s radar

My opinion is that aside from defence counsel, no one saw this storm of impeachment forthcoming: not the Crowns, not the police, not the complainants’ lawyers, and perhaps not even complainants themselves. I would hazard a guess that even the defence was surprised to the extent of which the storm kept coming.

This is not to say that the alleged victims did not know the evidence existed.

Rather, the odds of this evidence being discovered, retained, and presented so skillfully by a master of evidentiary sublimation was so far removed from reality that perhaps it was a risk each were willing to readily accept.

Or, perhaps I am wrong and their explanations will be found compelling by the presiding judge. Time will soon tell. Regardless, it need not to have gone the way of such devastation. These omissions need not to have had the explosive power they did.

If, for example, the alleged victims had told the police, (presumably) their own lawyers, or the Crown Attorneys. Then, these incalcuably important details that would form the basis for countless points of contention upon their veracity may have faltered.

As to be expected under cross-examination, explanations were offered as to why they appeared to be concocting evidence, colluding, holding back on salient details in police statements, amending statements, providing last minute disclosure, authoring provocative letters, and attempting to continue relationships with their attacker they now so throughly reviled.

Explanations can be offered, but that did not stop Ms. Henein from arguing soundly in the circumstances that these explanations are not worthy of belief.

As one commentator so succinctly put:

Henein didn’t take her eye of the soft underbelly of their narratives, each replete with towering inconsistencies, reversals, hastily retrieved memories, amended police statements, pungent fabrications, reluctant disclosures and grudging admissions adduced under cross.

Many believed that these explanations fell short of the overarching narrative they had each cast so intractably in the dye of their previous testimony and statements. As pointed out by Ms. Henein towards one example, it is not per se the after the fact behaviour and actions that impeaches their credibility – it is that the behaviour and actions contradicts their sworn evidence.

Subsiding the storm lied in the hands of the alleged victims

Yet had these explanations been told in advance, there likely would have been an inoculatory effect on impending attack against their credibility. Had these complainants remember any of these countless details that would no doubt been disclosed to the defence, it is unlikely the impeachments so masterfully extracted from the complainants would have had the same effect. Had they done so, it is arguable whether such evidence would have been worth any significant weight (or admissibility) as is so vociferously advanced by pro-victim commentators of the trial. 

For that matter, query whether many of them would have been raised at all. As was pointed out many times by commentators, the manner in which someone discloses allegations of sexual assault or their behaviour afterwards is not probative and may even be excluded on that basis.  It was argued that such evidence is exemplary of the myths of sexual assault victims.  All true, but that was not the point here.  The point in the case of Ghomeshi is that these details were withheld, denied, or amplified.  As such, advancing myths was not the focus of the defence: it was exposing the alleged victims for failing to be forthcoming about them.

Query also whether these complainants did not disclose such details because the negative impact they thought it might have upon their case.  If true, it is a rather strange twist of irony that the very myths that are now vilified for being raised at all, may have been the very impetus for the victims not disclosing them at all.

The Crown remained resolute and advanced why the case was proven notwithstanding

So, back to the blame game on this point:

Despite Crown Attorneys Mike Callaghan and Cory Langdon forcefully and eloquently putting forth to the Court, among other submissions:

“All three Crown witnesses were unshaken in their allegations that they were sexually assaulted by Mr. Ghomeshi,” Crown prosecutor Michael Callaghan said in his closing arguments on Thursday.


“the credibility of Ghomeshi’s three accusers has nothing to do with the way they behaved after the alleged incidents, since the law is clear that everyone responds differently to sexual assault.”

some, like the commentator above, still saw this as a fumble of the state.

They seem to see this as a failure to preserve, or reify the credibility of the victims by witness preparation. Preparation that presumably would have exposed these potential weaknesses in their evidence and then somehow repair them while at the same time fulfilling their disclosure obligations to the defence.

The special role of the Crown Attorney in the Canadian justice system

 A “fumble” in the mind of arm-chair quarterbacks who ought to know that our justice system is not one where the Crown wins or loses. These sideline spectators who ought to know that we do not quantify success of Crown Attorneys on convictions obtained. Who ought to know we do not expect Crown Attorneys to obtain convictions at the cost of “perfecting” witness evidence.

Yes, our system is adversarial, but that does not meet the Crown represents the victims.  The Crown Attorney has a very special role and that is one that acts in the interest of the State, in the interests of the Canadian justice system. As such, it is not in the interest of any rightly operating justice system that bends the rules that favour conviction when there is strong public pressure to do so.

As another writer put rightly, convictions should not come with ease in a properly operating justice system. Therefore, it is not in the interest of society, nor the Crown who acts in its interest, to place their hand on the scales to ensure a conviction.

As the Supreme Court of Canada said in R. v. Boucher:

“It cannot be overemphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented; it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness, and the justness of judicial proceedings.”

The negative effects of undue Crown preparation

ghomeshi trial update victimThe Crown must never been seen to improperly influence the proceedings or taint the evidence.  Not only is that contrary to their ethical obligations and role, it will undoubtedly negatively affect their case. Crown interference, even through so-called preparation, can result in a Crown Attorney becoming a witness to the own proceeding or worse still a stay of proceeding for an abuse of process.

Imagine the following scenario: A Crown Attorney meets with a witness alone prior to trial to prepare them for their testimony and anticipated cross-examination on details that are unhelpful to their case. After such a meeting the witness amends their anticipated evidence to details that are more favourable to the Crown.  As an example, imagine in this scenario the description of an alleged bank robber went from “6’2, tanned, and speaking with a Canadian accent” pre-meeting to “5’10-6′, caucasian, tattoo of a spider on his neck, and with a strong British accent.” Now imagine that the latter description is far more descriptive of the accused, whereas the former is exclusionary.

Any defence lawyer in the above situation would be required to ask “What happened in that private meeting that resulted in such a drastic change? What details were presented to the witness? What was said? Why was the interview not video recorded? How did this Crown Attorney seemingly influence their evidence to one far more favourable to the case?

Crowns are not immune from suggestions of impropriety or influence from the defence.  Nor are they immune from becoming a witness themselves if circumstances arise that make their participation material to a change in evidence. Nor are they immune from their participation resulting in a stay of proceeding for irreparably tainting the case against the accused. This is why Crowns are taught that meeting witnesses in private is to be avoided at all costs and to use the resources at their disposal (such as police interviews) in obtaining anticipated evidence in a manner that is untainted from their own involvement.

Insofar as empowering victims with familiarity of the process, there are specific governmental bodies dedicated to this who will meet with victims in advance. In Ontario, Victim Witness Services provides extensive support to explain the process and how to behave in Court.  Notwithstanding, Crown Attorneys will still out of respect and courtesy to the alleged victims will meet in advance to introduce themselves and ask basic questions that would not seem to be influential to their evidence.

The case of Ghomeshi

There is no doubt many are very disappointed with how this trial proceeded.  From both pro-defence and pro-victim, much has been said about the failure of our justice system. Criticisms continue to mount as we wait for the verdict.  Undoubtedly, when it comes, there will be vociferous dissent no matter what the results.

Just like the Crown’s creed, there really are no winners and losers in cases of this nature.

Everyone loses: the alleged victims, the accused, the lawyers, the judges, and at times even the justice system by the endless criticism of those who felt it could have been done differently.

What is most regrettable is that this criticism is fuelled by ignorance by those looking from the outside and following live tweets, endless opinions from lawyers and academics, and legal commentators whose very job is to make a case as exciting and controversial as possible to garner more clicks.

All that said, trial is not intended to be a mechanism of compromise.  By its very nature, it is oppositional and binary.  As I tell all my clients: “…no matter what happens, you will not walk out of this situation happy.  This is a gruelling, unforgiving, stressful, expensive, and unpleasant process for everyone involved.” However, throwing out the systems, bending the rules, or presuming verdicts in times of perceived crisis is not the answer.

Justice must prevail, even though the heavens may fall.

For what its worth, I take comfort in the manner this trial has proceeded. To me, this is a perfect example of the justice system working at its finest.  An impeccable defence combined with exemplary Crown Attorneys demonstrates that the justice system plays a necessary, albeit unpleasant role in resolving human conflict in a civil manner. Trials are not meant to be easy, verdicts of guilt are not meant to come lightly, and no witness is entitled to a presumption of truth no matter how heinous the acts complained of are.

It has been said that injustice is relatively easy to bear; what stings is justice. This case is no exception.

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