Opinion-Policy Nexus

The two trials — of Jian Ghomeshi and Mike Duffy — have more in common than the coincidental fact that both accused are or were celebrities from the broadcasting world.

Each was a criminal trial within a broader trial or debate. Each accused was represented by a superb defence attorney — Marie Henein for Ghomeshi and Donald Bayne for Duffy — who shredded the prosecution's case. In the end, each case turned on the issue of reasonable doubt.

The sexual assault charges against Ghomeshi, the former CBC radio host, were subsumed in the controversy over the way the police, the courts and the media treat women in cases of sexual assault. The criminal trial, involving three complainants, was resolved last week with Ghomeshi's acquittal on all charges (a second trial, involving a fourth woman is scheduled for June), but a broader question remains unanswered. It is how can the justice system encourage women to come forward in sexual abuse situations while still affording male defendants the protection of the assumption of innocence?

In the case of Senator Duffy, formerly of CTV, the long-running criminal trial is over and a verdict is scheduled to be delivered on April 21-22. But the bribery and fraud charges against Duffy were only part of what became a political show trial featuring the Prime Minister's Office (under Stephen Harper) and its clumsy attempts to cover up embarrassing elements.

It is worth recalling that the questionable expense claims identified by the federal auditor general amounted to just under $1-million. That led to the retaining of outside auditors to examine the spending of all senators' expenses. The bill for that examination: $23-million. One might wonder whether Canadian taxpayers got value for their money.

Questions might be asked about the decision, clearly promoted by the Harper PMO, to pursue charges against Mike Duffy, the Ontario resident who accepted a Senate seat from Prince Edward Island. ‎Justice Charles Vaillancourt will have the definitive word in his ruling next month, but observers who followed the trial were repeatedly struck by the weakness of the Crown's case. Senate residency and expense rules were poorly defined and loosely enforced. Some of the expert witnesses called by the Crown did more to reinforce the defence than to support the prosecution.

The principal charge against Duffy — that he took a bribe from Harper's chief of staff, Nigel Wright, when he accepted $90,000 to repay disputed Senate expenses — went nowhere. Wright was not charged with offering a bribe, and the money ended up going to the taxpayer, not to Duffy personally.

So weak was the bribery charge that the Crown did even bother to mention it or that $90,000 in its final argument to Judge Vaillancourt.

The Senate is currently in the early phases of reform under the Trudeau Liberal government. It seems inevitable that clearer residency rules and more enforceable expense rules will emerge from this process. If so, the Duffy scandal will have accomplished something worthwhile.

The same cannot be said for the Ghomesi scandal. I thought his lawyer, Marie Henein, was meticulous in her cross-examination of the three women. She did not suggest in any way that the complainants had behaved in a manner to encourage sexual assault. Rather, she put a spotlight on inconsistencies in the complainants' contacts with Ghomeshi after the incidents — on their letters, emails and social media posts that they had neglected to tell the police or Crown lawyers about. Those inconsistencies created more than enough reasonable doubt to acquit Ghomeshi.

In this case, one can fault the police or the Crown for not questioning the women thoroughly enough before bringing their cases to trial. But the fundamental problem is the way the criminal justice system works. It seeks to establish truth through confrontation, by pitting the credibility of the accuser against the believability of the accused, with the benefit of the doubt going to the latter.

It works better in cases of axe murder than sexual assault.


Monday, March 28, 2016 - 09:33