When on Feb. 11, 2016, lawyers in the Jian Ghomeshi sexual assault trial finished their closing submissions, Ontario Court judge Bill Horkins said that he was taking some time to render his decision.
Once one of the biggest names at the CBC, Ghomeshi was pleading not guilty to four counts of sex assault and one of choking with intent to overcome resistance, with a separate trial on another charge, a sexual assault that allegedly occurred at the network’s Front Street West Toronto headquarters, slated for that June.
That case was resolved a month early with a peace bond. In exchange for a promise to “keep the peace and be of good behaviour” and an apology to the complainant, writer and former Q colleague Kathryn Borel, prosecutors withdrew the charge, leaving Ghomeshi without a criminal record.
The first trial had been brief, pointed, and for the three female complainants, little short of disastrous.
Yet there was Horkins saying, as though the weighty nature of the task before him was terribly obvious, “It won’t come as any surprise to counsel that I’m going to reserve judgment on this matter.” He added that he’d come back with his decision on the next scheduled return date for the case—forty-two days later.
Now, there was a time not so long ago when there sat in the province of Ontario a judge or two, probably never more than that, who not only would have had the self-confidence to render an immediate decision from the bench, but also might have had the stones to tell Ghomeshi’s lawyers, Marie Henein and Danielle Robitaille, that they needn’t bother with a closing address at all, thanks very much.
For instance, when Robitaille, who handled the first part of the defence submission, got to her feet, Eugene Ewaschuk (until recently a judge of the Ontario Superior Court) or the late Dave Humphrey (of the same court) might have said, “Sit down, Ms. Robitaille,” looked over to prosecutor Mike Callaghan, who had already made his sad final arguments, and chirped, “Got anything else, Mr. Callaghan?”
And when Callaghan, whose entire case had been knocked out from under him by his own duplicitous complainants, inevitably replied that he didn’t, Ewaschuk or Humphrey may well have acquitted the fallen CBC star on the spot.
What either judge might have said would have gone something like this: “This was an interesting trial in which three women testified.
“They all recounted aberrant and frightening aggression by the accused. The similarity in their accounts makes me think what they described might have happened, but that’s not the issue before me or the test to be applied.
“As witnesses at a criminal trial, each was to varying degrees and for different reasons untrustworthy. Each makes me unsure of their evidence.
“To find the accused guilty, I must be much more certain than I am that the Crown has established the elements of the offences charged beyond a reasonable doubt.
“I am not.
“Mr. Ghomeshi, you’re found not guilty.”
It goes without saying that Ewaschuk, possessed of a ferocious intellect, and Humphrey, canny and intuitive, were smart judges.
But what was really remarkable about them was that, as a veteran lawyer put it, they didn’t care if they got invited to the right cocktail parties. (This lawyer says Ewaschuk wouldn’t have gone if invited, and Humphrey was such delicious company, he would have been asked despite anything he did or said in court.) They just didn’t give a flying fig about being in the club of the special, and thus felt no need to please anyone else or be well regarded.
(In a delightful story in Learned Friends, a book about fifty of Ontario’s top advocates, author Jack Batten begins the bit on Humphrey by recounting his one-line closing address to the jury in a rape trial. “Members of the jury,” he said, “if this case is rape, then I’m a monkey’s uncle and, though the resemblance may be amazing, I ain’t.” The jury promptly acquitted his guy.)
In short, Ewaschuk and Humphrey were thoroughly unconventional members of one of the most conventional groups of Canadians there is—the bench.
So why would Horkins, and most other judges, take six weeks to come to a decision in a case that had acquittal written all over it?
My naked fear on hearing his intention to reserve was that it was a need to equivocate, to write a judgment that would be as pleasing as possible to all reading it, particularly those who persisted—against all the evidence and despite the genuinely spectacular crash-and-burn of Ghomeshi’s accusers—in seeing them as victims (of abuse, of violence, of the patriarchy, ultimately of the justice system) and the trial itself as a critical test of the system’s ability to deal with sexual assault cases.
But on March 24, to my delight, Horkins proved me wrong.
If he knew full well what was his role in this political show trial—to “validate” the complainants, to denounce sexual assault in all its forms, to mouth the right platitudes even as he acquitted Ghomeshi—he had the courage to do little more than pay lip service to it.
Judges in the criminal courts love to imagine they’re above the fray, immune to the currents that pull the culture and the rest of us one way or the other. Horkins’s decision, spare and cool as the best judgments are, showed he was fully aware of those pressures but strong enough not to yield to them.
Christie Blatchford was born in Quebec and studied journalism at Ryerson University. She began her career in 1972 at The Globe and Mail and has since worked at The Toronto Star, the Toronto Sun, and the National Post. Ms. Blatchford won a National Newspaper Award in 1999 for her column writing and a 2008 Governor General’s Literary Award for her book Fifteen Days: Stories of Bravery, Friendship, Life and Death from Inside the New Canadian Army. She lives in Toronto. Christie Blatchford is shortlisted for the Writers’ Trust’s Shaughnessy Cohen Prize for Political Writing for her book Life Sentence: Stories From Four Decades of Court Reporting—Or, How I Fell Out of Love with the Canadian Justice System (Especially Judges) published by Doubleday Canada. The Shaughnessy Cohen Prize winner will be announced at the Politics & the Pen gala in Ottawa on May 10. www.writerstrust.com Excerpted from Life Sentence by Christie Blatchford. Copyright © 2016 Christie Blatchford. Published by Doubleday Canada, a division of Penguin Random House Canada Limited. Reproduced by arrangement with the Publisher. All rights reserved.
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