The Ghomeshi decision: Justice Horkin earns a C on this law school exam!
By: Daphne Gilbert
There has been much written about the impact of the decision in R v Ghomeshi on the brave women who came forward in that case, on sexual assault complainants generally and on the attractiveness (or lack thereof) of a criminal justice response to the pervasive crime of sexual assault. At uOttawa’s Faculty of Law I teach both Sexual Assault law and first year Criminal law. I thought it useful to look at the written reasons for judgment by Justice Horkins and assess them not for their dire consequences for sexual assault law generally, but more specifically as reasons for judgment – reasons for HIS judgment. How did he come to the decision he did? He had much to say about the complainants’ credibility, but how specifically did their failings affect his legal analysis? This is in other words—“Criminal law 101” of sexual assault. Assuming Jian Ghomeshi’s actions were the hypothetical in a first year law school exam, how would I grade the effort?
The only bits of law offered by the Judge are a definition of what makes an assault a “sexual assault” and a description of what constitutes reasonable doubt.
No where in his judgment does he lay out the constituent pieces of what makes a “sexual assault”. That is:
The Actus Reus:
-that there was touching of a sexual nature
-without the subjective consent of the complainant;
and the Mens Rea:
-that the accused intended to touch and did so knowing, or being reckless, or willfully blind to the complainant’s lack of consent.
These are the basic, core components of a sexual assault. None were addressed in Judge Horkin’s set of reasons. Let us first consider his approach to the Actus Reus of the crime: the criminal act. He seems to accept that the touching was, at face value, sexualized. He never suggests outright that sexualized touching did not happen. Therefore, the first step in establishing the criminal act of sexual assault is present. But he never addresses whether in his mind the complainants’ (any of the three of them) were subjectively consenting to the touching. He comes to no conclusion on whether the criminal act occurred (or not) because he does not consider the second part of the test.
I assume—and it is not good when one has to make assumptions from a written set of reasons, but still, I assume that the Judge had reasonable doubt around the complainants’ subjective lack of consent to the touching. That makes the most sense given his obsession with their post-incident conduct with Ghomeshi. It is worth emphasizing that while many other instances of sexualized contact were referred to by the judge (and elicited from the complainants in cross-examination), the Judge should NOT have considered whether the complainant’s subsequent sexual contact (for example the “hand job” performed by complainant SD) had any bearing whatsoever on whether she consented to the subject-incident of the charge—ie. Whether Ghomeshi choked her while kissing her on a bench at a baseball diamond).
If the judge had forced himself to stick to the incidents that were the subject of the charges, he should have directed his mind to the subjectivity of their consent to the specific allegations:
-that SD was choked while also being kissed on a bench at a baseball park
-that Lucy DeCoutere was choked and slapped after an “out of the blue” kiss
-that LR’s hair was yanked both in Ghomeshi’s car and on a different occasion she was punched in the head several times and pushed (Or pulled) to her knees at Ghomeshi’s home.
Only once in the judgement does the Judge offer any opinion as to whether the complainants were credible on the specific descriptions they offered. At paragraph 106 of his reasons, he reviews the description offered by SD, specifically illustrating her “lack of precision, in responding to a question about how long Ghomeshi’s hands were around her neck, she offered “Seconds, A few seconds, Ten seconds…It’s hard to know.” To Judge Horkin’s this was damning “imprecision”.
That is all that the Judge had to say in questioning the complainants’ specific descriptions of their assaults. Does he doubt either that they had been struck or pushed or pulled; or does he doubt that they objected to it?? Does he have reasonable doubt that if they consented to this conduct, it did not therefore rise to a level of bodily harm that one cannot legally consent to? We don’t know from this set of reasons.
All of them described that the acts happened suddenly, randomly, “out of the blue”, in a flash of rage—ie. In a context where they could not have been given a chance to object or consent. The Judge does not address this issue.
I acknowledge that the entire set of reasons is ultimately based on the judge’s decision the women are liars. The cumulative impact of the 24 pages is a devastating indictment of the woman as deceptive, insincere media hounds. He thinks they are liars and so therefore, they could have lied about the attacks. It is true that they could be women who have lied—haven’t we all. But I think that it was incumbent on him to point to the lies they told about the specific allegations. As far as I can tell, no one ever shook them from their stories of violence at the hands of Jian Ghomeshi. Not even Marie Heinan was able to get them to recant the core allegations that formed the basis for the charges. This means that the actus reus of the charge should have been substantiated. If it wasn’t, the Judge should have specifically raised his doubts about what elements of the violence he believes did not happen.
It also concerns me that in discussing the flowers Lucy DeCoutere sent Ghomeshi, Judge Horkin’s admonishes that this was “clearly relevant and material information in the context of a sexual assault allegation”. Relevance and materiality are at the core of a Court’s definition of admissible evidence. How do we define these concepts in law?
Relevance: “does the evidence make a fact in issue more or less likely to be true?”
Materiality: is the evidence “directed at a matter in issue in the case?”
I think it is certainly legally debatable whether it is relevant and admissible to whether Lucy Decoutere was choked and slapped that she sent him flowers after the fact. How do the flowers make the “fact at issue”—ie the choking or hitting, more or less likely to be true? How does that go to her subjective consent to that act at the time such that it is material to the issue of actus reus? But even if a good defence lawyer argued it, the Judge insists that Decoutere herself should have known the flowers were relevant and material (even as he acknowledges it might not be “unusual” behaviour to have sent them). How could she be presumed to know about admissibility of evidence standards? If it isn’t something he is willing to call “unusual” (which he is careful to avoid for fear of being accused of stereotyping victims), than how could she have known it was “relevant and material”.
There are many other objectionable pieces in the judgment that I would have criticized in a law school exam—the focus on animus for example is disturbing and suggests the judge thought the women should not have hated Ghomeshi for what he did to them. I find it odd that given the Judge’s obsession with the complainants’ post-incident conduct, he did not come to the opposite conclusion that animus proved Ghomeshi must have have assaulted them! If after-the-fact they hated him that much, by the Judge’s reasoning, that should have been probative.
I would also argue that had the judge come to the conclusion that the criminal act occurred—ie. that the elements of the actus reus were proven—he should then have turned his attention to the state of mind of the accused. Did Ghomeshi know he did not have consent to hit, push and pull the complainants? Did he take reasonable steps to ascertain whether the women were consenting to his violence? And is it even possible, in law, for someone to consent to violence that causes bodily harm? These are important legal questions that should have been answered in the set of reasons. Justice Horkins is fuzzy enough in terms of Criminal law doctrine to have earned at best a C from me on a law school exam.