Ghomeshi’s Day in Court

By Stan Persky | February 15, 2016

Remember that irrefutable, if somewhat smug, feminist phrase from the 1980s: “So what part of the word ‘No’ don’t you understand”? I’m afraid we may have found an answer to that conversation-stopper in the Jian Ghomeshi trial.

Marie Henein (l.), Jian Ghomeshi (r.)

Marie Henein (l.), Jian Ghomeshi (r.)

For the first fortnight of February, while Toronto shivered in minus-10 degree cold, within Old City Hall courtroom 125, the testimony was heated and the cross-examination steamy in the case of former CBC radio personality Jian Ghomeshi, 48. The ex-host of “Q,” a popular interview program, is charged with four counts of sexual assault and one count of overcoming resistance by choking.

The case unfolded sensationally but unevenly more than a year ago in fall 2014, with rumours of a pending Toronto Star expose of a sexually abusive public figure. To pre-empt the scandal, or perhaps to blunt its impact, broadcaster Ghomeshi took to Facebook with a rather odd post admitting to a fetish for “rough sex,” but claiming that his encounters solely involved consenting adults (and the familiar trope of “jilted ex’s”). And anyway, his perfectly legal private life, he insisted, was his own business. An unusual public confession, to be sure, but in an era where 10 million-plus copies of  E.L. James’ Fifty Shades of Grey, a softcore S&M tale about the bondage and disciplining of an apparently willing young woman, can be peddled… so, what else is new?

In short order, Ghomeshi was summarily fired by the CBC. The Star expose duly appeared, naming the radio host as an alleged predator. Numerous (but mostly unidentified) women came forward to claim they had been physically and sexually assaulted by Ghomeshi, and the police initiated an investigation. A Macleans magazine profile wagged an angry finger, declaring that, “Jian Ghomeshi’s behaviour was an open secret, going back to his university days. Not that anyone took action. In fact, the CBC made him a star.” We should have seen this coming, said the magazine, laying out a lengthy account of longstanding claims about the radio star’s sexual proclivities and other unpleasant features of a twisted persona (Anne Kingston, “Jian Ghomeshi: How He Got Away with It,” Macleans, Nov. 6, 2014).

The Crown eventually filed sexual assault charges against Ghomeshi, whittling down a large number of complaints to a case based on the depositions of three complainants, relating to incidents that had taken place a dozen or more years ago. How Crown prosecutor Mike Callaghan determined the limited number of complainants remains unclear. The accused, for his part, hired prominent defence lawyer Marie Henein to protect his imperilled interests.

Jian Ghomeshi arrives at trial.

Jian Ghomeshi arrives at trial.

It took more than a year for the full ensemble of complainants, accused, attendant lawyers, and media chorus to appear before Justice William Horkins of the Ontario Court of Justice in February 2016. The media chorus, it might be noted, included the Three Wise Witches of Canadian journalism – veteran columnists Christie Blatchford of the National Post, Rosie DiManno from the Toronto Star, and Margaret Wente of the Globe and Mail – who were on hand to stir the cauldron. A legion of wannabe graduates of Harry Potter’s alma mater, the Hogwarts school of wizardry, enthusiastically added spice to the social media pot. Although in the “real world” Ghomeshi is a relatively minor celebrity, in Canada the case became one of the most followed, gossiped about, and commented upon legal processes in years.

The fickle “court of public opinion” had rendered its guilty verdict in little more time than it takes to send a tweet. Most observers thought that the actual trial would be an open-and-shut affair, and there was not a little Schadenfreude over the anticipation that the one-time CBC media darling would be undone by his own dulcet tones (“Hi there, I’m Jian Gomeshi,” was the lead-in by which listeners were invited to a new installment of the show).

Apart from both informed and (lots of) uninformed opinion, the strength of the case rested on a variation of the notion known in the legal business as “similar fact evidence,” facts that suggest a “pattern of behaviour.” The “similar facts” were ugly. In each instance, it was reported that Ghomeshi, while casually dating and lightly romancing various women, suddenly and frighteningly turned into a physical and sexual aggressor who punched, slapped, and even choked his victims, as well as further implying that they liked that sort of “play.” What’s more, Ghomeshi could just as quickly revert to his modest, seductive public self in this Jeckyl/Hyde performance, leaving his victims confused in a “did this really happen?” sort of way.

It was the consistency of the complaints that made the case seem unassailable, and akin to the then concurrent scandal involving elderly U.S. comedian Bill Cosby, who was facing similar charges of sexual predation. Additional accounts, not part of the pending trial, tended to back up the claims of the complainants. Perhaps the most persuasive of them was Toronto lawyer Reva Seth’s level-headed damning narrative of her brief encounter with Ghomeshi, but there were plenty of others that undergirded the suspicions of a “pattern of behaviour” (cf., Reva Seth, “Why I Can’t Remain Silent About What Jian Did to Me,” Huffington Post, Oct. 30, 2014).

If it required a year to get the case to a judge-only trial, it took little more than a day for the whole thing to begin to spectacularly unravel. The first witness, whose identity is protected by a publication ban, laid out an account of being savagely mauled by the defendant on two occasions. But as Christie Blatchford put it, “One of the few constants in the woman’s story — as told first to various media two years ago when the scandal around Ghomeshi broke in the press, then in a sworn statement to Toronto police, and finally in examination-in-chief here — was that she was shattered by the second attack. As she told police in her Nov. 1, 2014 statement, ‘I left and I didn’t come back and I didn’t have any more dealings with him after that.’”

However, faced with defence counsel Marie Henein’s cross-examination, Blatchford notes, the “questioning culminated with the stunning revelation” that this woman had in fact contacted Ghomeshi after the alleged assault, e-mailing him “twice, a year later, once attaching a picture of herself in a string bikini.”

Blatchford printed the text of the dozen-year-old e-mails that the defence had uncovered: “Hello Play>Boy” [Ghomeshi then had a TV show called Play>], was the subject line of the January 2004 email. “Good to see you again! Your show is still great. When you take a break from ploughing snow naked, take a look,” she said, providing a link to a video of her and a friend in a band singing, then added, “If you want to keep in touch this is my email!!!!” She also offered her cell number. Ghomeshi never replied.

Blatchford continues: “On June 22 that same year, the woman wrote again.’Hi Jian,’ she said. ‘I’ve been watching you on Screw The Vote [a documentary Ghomeshi did that year on why young people don’t vote in federal elections] and I thought I’d drop you a line and say hello. Hope all is well.’” Attached to the e-mail was a photo of herself in a bikini swimsuit, entitled “Beach,” that had been taken a couple of days earlier.

“The woman had an explanation” for her surprising behaviour, Blatchford reported. “’I wanted Jian to call me,’ she told Henein, ‘so I could ask him why did he violently punch me in the head. If I’d just said, Give me a call, I didn’t think he would. The email was bait, to call me, so I could get him to call me.’ ‘But you didn’t tell the police?’ Henein asked, pointing out she had told the detectives no fewer than six times that she had had no further communication with him.” At which point, you could practically see columnist Blatchford’s eyes rolling in her head. Well, not just “practically” see. In these days of newspaper penury and “media convergence,” even veteran columnists are hauled in front of the cameras to provide online video summaries of their columns. In the course of the trial, Blatchford’s “stand-ups” increasingly resembled the sort of things stand-up comics like Rick Mercer and Charlie Demers do at Yuk-Yuks. (Christie Blatchford, “’Forgotten’ emails put witness’s memory on trial, too, in Ghomeshi case,” National Post, Feb. 2, 2016.)

The holes in witness no. 1’s story were just the beginning. She was followed by Lucy DeCoutere, an actress in the Trailer Park Boys series, and the sole complainant who agreed to waive her anonymity. She, too, recounted a brutal date with Ghomeshi, that included slapping and choking. Guardian journalist Angelina Chapin picks up the story about what happened next: “DeCoutere stayed for another hour while Ghomeshi played his guitar and a record. Her actions in the days and weeks that followed became even more contradictory, given his alleged behavior.

“She sent him an email early the next morning that said: ‘You kicked my ass last night and that makes me want to fuck your brains out. Tonight.’ An odd reaction from someone who would later testify she did not consent to his violent behavior. After the alleged assault, DeCoutere spent the rest of the weekend with Ghomeshi, having brunch, going to a BBQ and taking a photo of themselves cuddling in the park. When she returned home to Halifax she sent him flowers with a note that said, ‘Thanks for hanging out.’

“DeCoutere also mailed him a letter less than a week later in cursive writing that ended with: ‘I love your hands, Lucy.’ The same hands he had allegedly used to choke her.” (Angelina Chapin, “Writing a love letter instead of a police report,” The Guardian, Feb. 13, 2016.)

Marie Henein and Jian Ghomeshi leaving court.

Marie Henein and Jian Ghomeshi leaving court.

As Globe columnist Margaret Wente put it, “Nobody, not even the most experienced court-watchers, could have predicted how this trial would go. It has turned into a fiasco. The most high-profile witness, actress Lucy DeCoutere… suffered a devastating blow to her credibility because she’s never told anyone involved in the case that she had pursued a relationship with Mr. Ghomeshi after he had allegedly assaulted her.” Wente cited DeCoutere’s “six-page handwritten love letter” and the closing line about Ghomeshi’s hands.

Wente duly noted that DeCoutere’s lawyer pointed out that the issue isn’t about the behaviour of the woman, or whether victims of violence “see their abusers again or send flowers.” But a criminal conviction, Wente adds, needs more than the ring of truth. “It needs witnesses who are consistent, credible, and open. And Ms. DeCoutere, for one, was not. She testified that her relationship with Mr. Ghomeshi after that night was distant and professional. Yet the evidence depicts a lovesick fan, pursuing a man who was no longer interested in her. When confronted with her e-mails and the letter, she said she couldn’t remember writing them. She said that when she told Mr. Ghomeshi she wanted to fuck his brains out, she didn’t mean it.” (Margaret Wente, “The Ghomeshi trial turns into a fiasco,” Globe and Mail, Feb. 8, 2016.)

It wasn’t over. Witness no. 3 took the stand. She and Ghomeshi met at a Toronto dance festival in summer 2003. As the Globe’s Simon Houpt reported, “The two went for dinner one night, then to a park where, she said, they were ‘making out’ when ‘some kind of switch happened,’ and Mr. Gomeshi began to attack her. ‘There was nothing about this that I wanted to be a part of. It didn’t feel safe or sexy.’

“She extracted herself and left quickly,” Houpt continues. “Still, the woman saw Mr. Ghomeshi again for another date some days later because ‘he’s charming,’ and ‘you second-guess yourself.’ … The two went back to her home for a ‘romantic encounter’ …” None of the information about the further encounter with Ghomeshi had been disclosed to the police until the trial was underway and the inconsistencies in other witnesses’ testimony had been widely reported. (Simon Houpt, “Ghomeshi’s lawyer attacks credibility of third accuser,” Globe and Mail, Feb. 8, 2016.)

At which point we can turn the tale over to the capable hands of the Star’s Rosie DiManno, who coyly begins her column, “There was just that one little thing.

“Jian Ghomeshi’s phallus.

“In the witness’s hand. At her house. Consensually. A post-dinner manual stimulation. A couple of days after the then-CBC celebrity radio host had allegedly wrapped his own paws around the complainant’s throat and squeezed.”

DiManno quoted defense lawyer Henein: “You messed around and gave him a hand job. It happened after the assault.”

Comments DiManno: “BOING went the trial, as… Ghomeshi’s penis was introduced into evidence, albeit not as a formal exhibit – merely as party to events under dispute.” (Rosie DiManno, “Third witness gets ahead of another courtroom rewrite,” Toronto Star, Feb. 8, 2016.)

As if all that wasn’t enough, “Ms. Henein suggested the woman… worked with the complainant Lucy DeCoutere after allegations broke in the fall of 2014 in a malicious orchestrated effort to bring the former star to earth,” reported Simon Houpt. As evidence of the collusion, Henein produced some 5,000 messages the two women had exchanged, “including some that discussed strategy for the women to use in pursuing charges. Ms. Henein read a handful of the women’s exchanges into the record, including a few in which they take delight in imagining Mr. Ghomeshi becoming fat, bald, and incontinent while awaiting trial.”

Christie Blatchford’s column about the third accuser added, “The day of Ghomeshi’s bail hearing, for instance, the woman wrote to DeCoutere to say she was tempted to show up at the hearing, carrying a bowl of popcorn and wearing ‘a shit-eating grin.’ ‘I think people know his goose is cooked,’ DeCoutere replied.”

Blatchford summed it up: “With the collapse of the third accuser’s credibility… it’s now apparent the case was built upon the self-serving and carefully edited allegations of dishonest complainants, two of whom appear to have been colluding and gleefully anticipating Ghomeshi’s ruination, and raised up on the gossamer wings of unproven allegations in the press and on social media.” (Christie Blatchford, “With third accuser on stand, Ghomeshi trial enters unsettling new territory,” National Post, Feb.  8, 2016.)

What had been expected to be a drawn-out procedure was instead quickly wrapped up. Henein called no witnesses, Ghomeshi chose not to testify, and the prosecution and the defence proceeded directly to closing arguments. Justice Horkins reserved judgment until March 24.

If nothing else was learned, there were at least some possible answers emerging from the courtroom wreckage to that old question about “What part of ‘No’ don’t you understand?” If, after allegedly telling the other person No, that person then sends a photo of herself in a state of minimal dress (say, a string bikini) to the other party, the other party might have some doubt as to the exact meaning of the No. If the person who says No then sends a message to the other person saying, I want to fuck your brains out, the other person might wonder about the meaning of No. If the person uttering the No then takes the other person home and masturbates him… well, you get the idea. It looks like there might be several “parts” of No that one might have trouble understanding.

The trial itself had something of the air of an old-fashioned morality play. If the Three Wise Witches of Canadian journalism ended up shaking their heads in mounting disbelief over the proceedings, the complainant-witnesses often seemed like the Three Foolish Virgins. Ghomeshi of course was cast as the Devil himself. And clamouring outside the courthouse walls was the inevitable mob, with little appreciation of the rituals of the court and why we have them in the first place. They remained unimpressed by the notion that everyone, even the Devil, deserves his day in court. Nor were they interested in distinguishing between the notion that Ghomeshi might well be morally guilty of many things, but possibly not legally guilty of the charges he faces. In addition to all else, there was even a running stream of fashion commentary about couture-and-coiffure, and the strategic meaning of the colour-coordinated costumes of the defendant and his legal team, including defence lawyer Henein’s stiletto high heels.

Predictably, there were plenty of instant post-mortems once the courtroom cleared. Feminists of various stripes, disappointed with what took place at the trial, spent considerable energy attempting to recalibrate the issues. Some suggested that the entire procedure in sexual assault cases be reformed to benefit the alleged victims. Others pointed out that inconsistent post-trauma behaviour by complainants did not mean that their accusations were untrue. There were imperative reminders to “believe the women.”

The best response to all of this came from columnist Margaret Wente, despite her not always being the first journalist who comes to mind as your go-to person for common sense. “It’s all over but the verdict – and the shouting,” Wente said. “To many people’s outrage, Jian Ghomeshi – perhaps the most widely loathed man in Canada – is unlikely to be convicted for alleged crimes that happened in another decade. There is almost no corroborating evidence, and all the witnesses were, to put it kindly, shaky.”

Wente judged that “almost everybody lost” in the courtroom debacle. Ghomeshi’s “reputation is beyond repair. All three complainants were cut to ribbons for varying degrees of misleading and incomplete testimony… The Crown looks, at best, hapless, and appears to have failed miserably in preparing the witnesses for the rigours of trial. The police look terrible for failing to conduct a proper investigation and failing to uncover important evidence that proved devastating to the witnesses. The same can be said of their lawyers. The only winner is the razor-sharp defence lawyer Marie Henein, she of the clacking stilettos. She did her job.”

In the end, Wente declared, “The biggest losers were not in court. They are the many victims of sexual assault who now, because of this fiasco, will be more reluctant than ever to come forward.”

As important as pointing out the damage done by the ill-prepared case was Wente’s cautions to those who wanted justice done without understanding what justice might be. “An astonishing number of people calling for Mr. Ghomeshi’s head don’t seem to grasp the fundamental principles of our legal system. They seem baffled by the concept of innocent until proven guilty beyond a reasonable doubt. They don’t seem to understand the difference between belief and proof. They are outraged that the defendant was not obliged to take the stand, and that complainants are subject to scrutiny. Some people do grasp these things, but think there should be different rules for sex-assault cases. If so, I’d like to know what they should be.” (For more on these issues, see Neil Macdonald, “The Jian Ghomeshi trial: When #BelieveTheVictims meets #DueProcess,” CBC, Feb. 15, 2016.)

Wente also had some words to the wise for those who think matters can be settled by ideological fiat. “It must also be said that the victim lobby has done itself no favours,” she argued. “Its tone has been both strident and absolute. The notion that we should believe the victims – no matter what – not only is unhelpful, but has been thoroughly discredited… In fact, the public is more sophisticated than the victim lobby seems to think. People have a great deal of sympathy for sexual-assault victims. But they don’t think that means an automatic free pass.” Wente’s message is likely not one that her putative audience of committed partisans wants to hear, and the group that Wente calls the “victim lobby” will probably succeed in not hearing it. (Margaret Wente, “The biggest losers in the Ghomeshi debacle,” Globe and Mail, Feb. 12, 2016.)

The CBC has since reconfigured a new version of “Q,” with a new host, and rebranded it “q.” It remains a mostly lite-culture-and-entertainment vehicle aimed at younger listeners. More important than “Q” (or “q”)  is the Q. & A. conversation about sexual assault ignited across Canada by the trial of Q’s former host.
























  • Stan Persky

    Stan Persky taught philosophy at Capilano University in N. Vancouver, B.C. He received the 2010 B.C. Lieutenant-Governor's Award for Literary Excellence. His most recent books are Reading the 21st Century: Books of the Decade, 2000-2009 (McGill-Queen's, 2011), Post-Communist Stories: About Cities, Politics, Desires (Cormorant, 2014), and Letter from Berlin: Essays 2015-2016 (Dooney's, 2017).

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