25 March 2016

Ghomeshi and a fair trial #nlpoli #cdnpoli

The moment when Jian Ghomeshi’s lawyer established during the trial that witnesses against him had colluded in their testimony and had lied – even if by omission – there was very little chance that the judge could possibly have found the former broadcaster guilty of anything.

“The harsh reality,”  Ontario Court of Justice Judge William Horkins wrote in his decision, “is that once a witness has been shown to be deceptive and manipulative in giving their evidence, that witness can no longer expect the court to consider them to be a trusted source of the truth.”

The standard of proof in a criminal trial is proof “beyond a reasonable doubt.”  This does not mean, as judges in Canada frequently put it, that there is some scientific or absolute proof of guilt.In reaching his decision.

Horkin was guided by the model charge to the jury established by the Supreme Court of Canada in R v. Lifchus.  Horkin quotes the SCC decisions exactly in his own decision.  It’s worth quoting the whole thing as it appeared in Lifchus:
What does the expression “beyond a reasonable doubt” mean? 
The term “beyond a reasonable doubt” has been used for a very long time and is a part of our history and traditions of justice.  It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. 
A reasonable doubt is not an imaginary or frivolous doubt.  It must not be based upon sympathy or prejudice.  Rather, it is based on reason and common sense.  It is logically derived from the evidence or absence of evidence. 
Even if you believe the accused is probably guilty or likely guilty, that is not sufficient.  In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt. 
On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so.  Such a standard of  proof is impossibly high. 
In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.
Horkins noted in his decision that the Crown had no evidence other than the testimony of the complainants themselves. He noted as well that recollections of events may vary, especially after as long as a decade as was the case.  Horkins also emphasised the need for each case to be evaluated on its own merits and not to be influenced by presumptions about complainants generally, including the assumption that complainants in sexual assault are always truthful.
“Each complainant in this case engaged in conduct regarding Mr. Ghomeshi, after the fact, which seems out of harmony with the assaultive behaviour ascribed to him. In many instances, their conduct and comments were even inconsistent with the level of animus exhibited by each of them, both at the time and then years later. In a case that is entirely dependent on the reliability of their evidence standing alone, these are factors that cause me considerable difficulty when asked to accept their evidence at full value.
“The success of this prosecution depended entirely on the Court being able to accept each complainant as a sincere, honest and accurate witness,”  Horkins wrote.  “Each complainant was revealed at trial to be lacking in these important attributes. The evidence of each complainant suffered not just from inconsistencies and questionable behaviour, but was tainted by outright deception.”


Related:  Christie Blatchford "A good day for justice"