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The Ghomeshi Trial Is Still Transforming Canada’s Sex Assault Laws

‘Had It Coming’ author Robyn Doolittle on what’s changed, and what’s stayed the same, since the landmark trial.

by Sarah Berman
Oct 9 2019, 2:06pm

Globe and Mail journalist Robyn Doolittle explores the fallout of the Jian Ghomeshi trial in her book Had it Coming. Chris Young/Canadian Press

A lot has happened in the five years since Jian Ghomeshi was first accused of choking and punching women on dates. He was acquitted of five criminal charges in March 2016, settled another charge with a public apology, kept a low profile for a year or so while the sexual assault discourse moved on to higher profile allegations, then attempted two absolutely cringeworthy comebacks.

The trial itself has mostly faded to a bitter but distant memory. Maybe you remember some controversy over a yellow Volkswagen, or an email with a bikini photo attached. If you were following closely, you might recall that the Toronto judge called out the Crown’s three witnesses for not disclosing their contact with Ghomeshi after they alleged he assaulted them. More likely it was just the mood—the outrage and polarization in the wake of the verdict—that left a lasting impression.

Globe and Mail reporter Robyn Doolittle has studied this fallout, plus the hashtags and grassroots movements that grew out of it. In her new book Had It Coming, she writes about the Ghomeshi case as the first big sign of a cultural reckoning around consent and sexual assault in Canada.

Armed with a Statistics Canada study that found only 33 of every 1,000 sexual assaults were ever reported to police, many Canadians tuned in to Ghomeshi trial coverage thinking we had it figured out. “It was almost like a litmus test for how the country’s justice system was doing with sexual assault cases,” Doolittle said in a phone interview. “It was like, if he’s guilty then everything is fine, and if not, then the whole system needs to be torn down.”

In her book Doolittle reexamines everything we thought we knew then, and what we know now, a full five years and many more scandals later. It was a case that emboldened many more women to speak up—at least at first.

But Doolittle writes the Ghomeshi trial was not the litmus test we thought it would be. Testimony unfolded like a trainwreck in slow motion—each witness confronted with embarrassing contradictions and omissions on cross-examination. None of them knew to share their full communication history with investigators, and apparently nobody told them that an anti-Ghomeshi group chat would be attacked by defence lawyers in court.

“In all of the interviews that I’ve done, even with the most progressive legal scholars and lawyers, everyone pretty much agrees that the trial verdict was the right one,” Doolittle said. “It’s unfortunate that that’s a controversial stance, that somehow it seems like you can’t support sexual assault survivors while also objectively looking at the Ghomeshi trial and saying it was a hot mess.”

Though the news cycle has moved on from the Ghomeshi story, the trial continues to reverberate through Canada’s criminal justice system, with new sexual assault trial reforms that came into force federally in December.

Dubbed “the Ghomeshi rules” by defence lawyers, these Liberal reforms packed into bill C-51 include an application process for defendants who want to present complainants’ private records and communications as evidence. In the Ghomeshi case, this extra step would have tipped off prosecutors that Ghomeshi’s lawyers intended to show unflattering emails and photos to witnesses on cross-examination.

This change has the ability to tilt the credibility of a witness one way or another, and goes to the heart of Doolittle’s book subtitle: What’s fair in the age of #MeToo? Doolittle writes Canada already has progressive laws when it comes to verbal consent and intoxication, but as her 2017 “Unfounded” series revealed, they’re not consistently applied.

The so-called Ghomeshi rules have been met with both confusion and controversy, as critics say surprise is an important element in testing truth and accuracy. Ottawa lawyer Michael Spratt says the application process allows complainants to write off inconsistencies before they are questioned under oath. “It gives an inaccurate or untruthful witness an opportunity to receive that information and explain it away,” he said.

Spratt, who mostly represents defendants, says that laws written in response to public outcry on a single case are bound to cause trouble. “That leads to bad legislation,” he said. “A law that is reactionary to high profile events doesn’t receive the appropriate amount of study.”

In August, a Saskatchewan judge threw out the reforms in the context of a single case, deeming them unconstitutional. Judge Bruce Henning wrote that the new disclosure rules “seriously limit an accused person’s ability to effectively challenge the veracity of a complainant.”

Two challenges in Ontario took issue with other C-51 changes that allow complainants to make submissions and cross-examine in some cases. Both were rejected by Superior Court judges. Spratt expects a challenge like this could reach the Supreme Court in the next two or three years.

The disclosures apply to several types of private information, from counselling records to text messages, to family court documents. On one hand, the change protects complainants from being ambushed with unflattering material simply meant to shake them up. On the other hand, it delays proceedings and risks eliciting a few unsatisfying answers.

Years after she sat on the witness stand, actress Lucy DeCoutere, one of the three complainants in the Ghomeshi trial, caught up with Doolittle. She testified second, after the first witness was already forced to admit she did contact Ghomeshi after an alleged punching incident. On cross examination DeCoutere was revealed to have bought Ghomeshi flowers, written him complimentary letters about his hands, and cuddled in Riverdale Park. The defence also revealed she’d exchanged some 5,000 messages with the third witness.

“She knows it went horribly,” Doolittle recalled of the conversation. “She walked in totally unprepared for what happened. She acknowledges that her testimony fell apart on the stand."

It didn’t occur to DeCoutere to tell police about all of her interactions with Ghomeshi during her first interview with police, and nobody told her not to message the other complainants either. “None of this came up in her police interview,” Doolittle said.

Spratt says that these are the holes in the justice system that caused the Ghomeshi trial disaster, not the lack of disclosure. “It showed that complainants don’t receive appropriate information and support throughout the process,” he said. He said more can and is being done to help witnesses navigate the system without changing the law.

Doolittle connects this ongoing story to many more #MeToo flashpoints, from Hannibal Buress’s Bill Cosby joke, to the Aziz Ansari debacle, to the case of TVO host Steve Paikin. Doolittle highlights Paikin’s story as one of allegations handled properly; the accusation was taken seriously, investigated, and when found not to be substantiated, Paikin hung on to his job and reputation relatively unscathed.

Had It Coming has hit shelves in time for fall reading week on the campuses where debate over the handling of sexual assault cases first bubbled to the surface. It joins a cohort of #MeToo themed titles, including She Said by New York Times reporters Jodie Kantor and Megan Twohey.

Even among this wave of reporting, nothing quite matches the shock and resonance of the Ghomeshi case, as the man himself ghoulishly tried to take credit for being a pioneer. “I think the Ghomeshi trial undoubtedly is continuing to loom over our justice system,” Doolittle said. “What I write about is the fact that this really wasn’t the trial that we want to shoulder all our hopes and dreams for the justice system around sexual assault.”

For better or worse, Canada isn’t done processing it yet.

Follow Sarah Berman on Twitter.

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Had it coming