Ghomeshi Trial Begins

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pookie

Unionist wrote:

pookie wrote:

With respect, Unionist, this could only be argued by someone who was not following the trial itself, but, perhaps, relying on brief accounts of it in the media.

Actually, pookie, I base my argument on the judge's written decision. I didn't follow the trial (is there a transcript??) nor the media accounts. Did the judge misconstrue the evidence? Do you have sources of information about what went on that I'm missing?

The transcript is not yet available, but the trial was live-tweeted by numerous reporters in the courtroom.

I did not read the verdict in the same way that you did.  

I don't see this verdict as "good".  

But it is unreasonable to put all of the responsibility on the Crown.  The complainants made pretty specific statements at various points, that were thrown into at least some doubt by letters and emails and photos involving them in Ghomeshi's possession.  As far as I know, their participation in the creation of that documentary evidence was entirely voluntary.  If it was forgotten, I fail to see how even vigorous questioning by the Crown of events they could not possibly know (ie., that Lucy Du Coutere spent time at a park with Ghomeshi after the incident and appeared in a photo with him) could have uncovered that.

If you are suggesting that the Crown should have subpoenaed their computers and accounts for forensic recovery, I think that is competely unrealistic, a huge invasion of privacy and, again, would open up all complainants to further abuse from the accused.

In this case, it turns out there was an astonishing amount of that documentary evidence and, yes, it would have been great for the Crown to know about it.  But having the Crown do fishing expeditions into the personal lives of all complainants would be a gross overreaction.  And that is why, IMO, the Crown cannot be faulted for failing to do that here. 

Unionist

pookie wrote:

I did not read the verdict in the same way that you did.  

I don't see this verdict as "good".  

I don't recall saying the verdict was "good". I don't see it as "good" either.

Quote:
But it is unreasonable to put all of the responsibility on the Crown.  

I haven't put "all" the responsibility on the Crown. Obviously some of the complainants said things to the media, the police, to Ghomeshi himself, etc., which were distinctly unhelpful to their case. My concern is that no one helped them understand the importance of being transparent and truthful and consistent and complete in their statements.

Quote:
If you are suggesting that the Crown should have subpoenaed their computers and accounts for forensic recovery, I think that is competely unrealistic, a huge invasion of privacy and, again, would open up all complainants to further abuse from the accused.

No, I am certainly not suggesting that. But I'd like some smidgen of indication that the Crown asked the complainants to voluntarily hand over any emails (for example) that might bear on the events in question - especially emails that Ghomeshi himself would already have. Do you think the Crown should have done just that one thing - if not, why not?

Quote:
In this case, it turns out there was an astonishing amount of that documentary evidence and, yes, it would have been great for the Crown to know about it.  But having the Crown do fishing expeditions into the personal lives of all complainants would be a gross overreaction.  And that is why, IMO, the Crown cannot be faulted for failing to do that here. 

I absolutely fail to understand how it would be a "fishing expedition" to ask the complainants to disclose, to the Crown, anything relevant (in the Crown's analysis - not a layperson complainant's opinion) that might come up to destroy credibility, or that might corroborate the witness accounts, etc.

As for the "personal lives of all complainants" - that's a gross overreaction. We're not talking about "all complainants". We're talking about these complainants - whose allegations dealt squarely with their "personal lives", and whose credibility is the only thing that matters in securing justice.

Cody87

pookie wrote:

Unionist wrote:

pookie wrote:

With respect, Unionist, this could only be argued by someone who was not following the trial itself, but, perhaps, relying on brief accounts of it in the media.

Actually, pookie, I base my argument on the judge's written decision. I didn't follow the trial (is there a transcript??) nor the media accounts. Did the judge misconstrue the evidence? Do you have sources of information about what went on that I'm missing?

The transcript is not yet available, but the trial was live-tweeted by numerous reporters in the courtroom.

I did not read the verdict in the same way that you did.  

I don't see this verdict as "good".  

But it is unreasonable to put all of the responsibility on the Crown.  The complainants made pretty specific statements at various points, that were thrown into at least some doubt by letters and emails and photos involving them in Ghomeshi's possession.  As far as I know, their participation in the creation of that documentary evidence was entirely voluntary.  If it was forgotten, I fail to see how even vigorous questioning by the Crown of events they could not possibly know (ie., that Lucy Du Coutere spent time at a park with Ghomeshi after the incident and appeared in a photo with him) could have uncovered that.

If you are suggesting that the Crown should have subpoenaed their computers and accounts for forensic recovery, I think that is competely unrealistic, a huge invasion of privacy and, again, would open up all complainants to further abuse from the accused.

In this case, it turns out there was an astonishing amount of that documentary evidence and, yes, it would have been great for the Crown to know about it.  But having the Crown do fishing expeditions into the personal lives of all complainants would be a gross overreaction.  And that is why, IMO, the Crown cannot be faulted for failing to do that here. 

I have a question about this though. You're saying that if the Crown was to go fishing through personal emails, these personal emails would have to be revealed to the defendant (or at least the defendant's attorney).

My understanding is that the ~5000 emails between two of the complainants was discovered because the defendant's attorney used a legal process to gain access to the complainant's emails.

(As an aside, I find the fact that an alleged perpetrator has a process to access the personal ANYTHING of his alleged victims disgusting, even if in this case it revealed outright deception of the court. Worst of all it seems like the complainants weren't aware of it - I can't see them denying personal communication between each other if they'd known Ghomeshi's lawyer had access to their emails.)

But, back to my main question, since the alleged perpetrator already seems to have access to this sort of information (unless I'm misunderstanding something), then what's the difference if it's disclosed by the Crown?

brookmere

Misfit wrote:
now the courts go after their conduct after the assaults in order to discredit their allegations.

That is not what happened at all. The trial established that the complainants gave testimony regarding their subsequent interactions with Ghomeshi (or more to the point alleged lack of interactions) that were at odds with documentary evidence. This rendered them not credible as described in the judgment. You can take your pick as to whether they were forgetful, lying, or some combination of the two.

Unionist

Ok, pookie - in the absence of a transcript, I've gone back to look at some of the live tweets (these were by Laura Fraser of the CBC).

And here we see - clearly, IMHO - the indictment of the Crown's irresponsible behaviour. This is from Day 4 (Feb. 5) of the trial:

Laura Fraser wrote:
DeCoutere explains that part of the reason she didn't tell the police about every single interaction with Ghomeshi was because she was unfamiliar with the legal process.

"I thought that was something that would come out when the Crown did their investigation, which I now understand doesn't happen."

She said that her only experience of the legal process and being inside a courtroom comes from watching legal dramas, which "rely on the U.S. paradigm."

She believed that her police statement was "the first step in a longer exposition that would be teased out later."

This was not clear to her until she was called in to testify earlier than expected, she says. She realized she would have less time to prepare and speak with the Crown -- and that there were things they needed to know before she came into court so that... "there would be as few surprises as possible."

[my emphasis]

Some journalist should ask the Crown what they have to say about that. Same goes for the police. The Crown and the police represent us (in theory) - the public interest. We have a right to know why and how they screw up important cases like these.

 

brookmere

Quote:
DeCoutere explains that part of the reason she didn't tell the police about every single interaction with Ghomeshi was because she was unfamiliar with the legal process.

Given that she is an officer in the RCAF, I find this hard to believe.

 

Unionist

Slumberjack wrote:

You don't actually know how helpful or unhelpful the Crown prosecutor and the police were in preparing the witnesses to record their testimony, do you?  Or, are you in fact privy to the sets of instructions were given to the complainants before all of their statements were recorded?

Read what DeCoutere said just above, as live-tweeted by Laura Fraser.

And haven't I mentioned about a dozen times that journalists should ask the Crown and the cops why they got caught with their pants down here? Why Ghomeshi had everything (seemingly) and they had nothing?

Slumberjack wrote:

You assume that the Crown and police didn't prepare the witnesses to be as truthful and precise as they were able, along with an ask to submit recordings of all relevant conversations and correspondence with the accused.  Unless there is a transcript this is a blank area I agree.

I think it's bleeding obvious that that's exactly what happened. And I think we saw pookie, above, saying in effect that that's not the Crown's job. She hasn't commented on the police aspect yet. If that's true, then the criminal justice system stands indicted. It seems to have no trouble "convicting" vulnerable, marginalized folks, and exonerating well-heeled abusers of all stripes.

And yes, I agree - heads should roll, starting with Callaghan. A simple act like that might help slow the cold shower that this trial has visited on victims of abuse who are considering coming forward.

Slumberjack

Unionist wrote:
Read what DeCoutere said just above, as live-tweeted by Laura Fraser.

That only proves that she was, by her own account, aware of information that just about any amateur could describe as pertinent to the case, decisive perhaps, and instead of following counsel's instructions to place all relevant information on the record, decided on a tactic intended to surprise everyone, by finally coming clean during the cross-examination with evidence that was probably going to be detrimental to the very case she was making.

Not without a sense of humour, unintended or otherwise, the judge laid it out best with this summary:

Quote:
 [68] On the evening of the second day of trial and just before Ms. DeCoutere was set to testify, her lawyer approached Crown counsel with a question. If there was more to the post-assault relationship between Ms. DeCoutere and Mr. Ghomeshi than what had already been disclosed, would the Crown be interested in knowing about it? I can only imagine Crown counsel’s reaction.
 

Quote:
And haven't I mentioned about a dozen times that journalists should ask the Crown and the cops why they got caught with their pants down here? Why Ghomeshi had everything (seemingly) and they had nothing?

That comes down to the vagaries of memory, any soft and hard copy exchanges that may have survived, level of disclosure and honesty being displayed in the end.

Quote:
It seems to have no trouble "convicting" vulnerable, marginalized folks, and exonerating well-heeled abusers of all stripes.

Goverment doesn't seem to mind those practices, but we're against it.  That and plenty of other forms of injustice.

Quote:
And yes, I agree - heads should roll, starting with Callaghan.  A simple act like that might help slow the cold shower that this trial has visited on victims of abuse who are considering coming forward.

Yes, because when all else fails we'll take any scapegoat.  Anyone that deserves it.

Slumberjack

Unionist wrote:
I haven't put "all" the responsibility on the Crown. Obviously some of the complainants said things to the media, the police, to Ghomeshi himself, etc., which were distinctly unhelpful to their case. My concern is that no one helped them understand the importance of being transparent and truthful and consistent and complete in their statements.

You don't actually know how helpful or unhelpful the Crown prosecutor and the police were in preparing the witnesses to record their testimony, do you?  Or, are you in fact privy to the sets of instructions that were given to the complainants before all of their statements were recorded?

Quote:
But I'd like some smidgen of indication that the Crown asked the complainants to voluntarily hand over any emails (for example) that might bear on the events in question - especially emails that Ghomeshi himself would already have. Do you think the Crown should have done just that one thing - if not, why not?

You assume that the Crown and police didn't prepare the witnesses to be as truthful and precise as they were able, along with an ask to submit recordings of all relevant conversations and correspondence with the accused.  Unless there is a transcript this is a blank area I agree.  Because wouldn't that indicate such casual, professional incompetence in the face of scrutiny on a national scale, as to suggest that an overhaul of that agency is warranted?  If this is truly the case, then shouldn't heads roll to account for the fact that inaction and incompetence on the part of the Crown in this case may discourage others from coming forward to report similar crimes, because of a lack of faith in the competence of the Crown.  This would be a terrible effect.  Because it's either that explanation and a completely justified house cleaning at that bureau, or is it the fact that the complainants themselves; after so many promptings, statements, chances to table very key pieces of information to the court; that led the prosecution down the garden path in full confidence that they had everything, ultimately to the embarrassment of hard working civil servants, in front of everyone.

mark_alfred
Rev Pesky

Pondering wrote:
...Not if it is something you do habitually, write letters in general or write love letters. I've never done that so it might stick in my mind but not necessarily especially if there was no response to it.

She may also have remembered writing a letter but not the order of events, that she wrote it after that incident, because at the time she didn't think of it as an assault.

This does not explain why all three of the complainants apparently forgot things. In any case, Lucy DeCoutere wrote the letter within 24 hours of the alleged assault. To imagine that she could well remember what happened one day, and then forgot what happened the next strains credibility, especially when one considers that going to trial would have brought the events to the forefront of her mind.

I do not agree with the theory that the prosecution was responsible for this. The responsibility lies completely with the complainants. They are the ones who withheld details of events, and then claimed that the events had never happened. As everyone should know, you can't force someone to tell the truth if they don't want to. In addition, the evidence of the events was held by the defence, and while the prosecution is forced to reveal their case to the defence, the defence does not have to reveal their case to the prosecution.  I do agree that the prosecution should probably treat all statements as false until they can marshal the evidence to support them, or in the case where a witness is unconnected personally with the events.

Then there is the other solution proposed by some, that of using the civil litigation system with it's lower standard of proof. I'll just point out that the complainants would not be able to retain their anonimity in such a case, and of course there's no guarantee the outcome would be any different.

As far as the lawyer who referred to Gomeshi as a 'coward' for not testifying, that is as may be. It took hundreds of years of struggle to forestall the state from forcing people to testify against themselves, and I for one am glad that it is still the case.

I remember Susan Nelles, who was arrested for the murder of several babies under her care. Her request for legal counsel before she made a statment was taken by police as an admission of guilt. It shows how easy it is to assume, and how important it is to to protect the rights of the accused.  

 

 

Mr. Magoo

Interesting interview with Gillian Hnatiw.

Quote:
Many people feel that you and the Crown were blindsided by the e-mails Ms. DeCoutere sent afterward and in other post-incident behaviours. Were you?

Yes and no. Lucy recalled that there were e-mails as I understand it from evidence that came out in court. She did tell the police about there being e-mails in their initial interview, but again, I never read it so I am constrained by what I can say. It is my understanding that she told the Crown that there were e-mails. I think they were on an e-mail account that had long been inactive. If you don’t access it over a long period of time, I don’t know you can say they were deleted as things live forever out there in cyberspace, but she couldn’t access them any more.

 

Rev Pesky

Lucy Decoutere had her own lawyer. Apparently there is some disagreement between them about the level of preparation...

 

Court not arbiter of truth

 

Quote:
G&M:  In interviews that Ms. DeCoutere has given recently, she has suggested that she was inadequately prepared for trial.She said that you took her to dinner the day before she went on trial and drew pictures of the courtroom with crayons on craft paper. It made the exchange seem infantile and overly simplistic. “The Crown never sat with me and said, ‘This is how you answer the freaking questions,’ ” she said, adding that she felt she “ruined” the case.

Hnatiw:  We did work together in the weeks leading up to trial to do certain things. I am limited by solicitor-client privilege regarding what I can say. An important factor in this case is that Lucy lives in Halifax so we were geographically constrained to some degree as to what we could do in advance.

 

 

Mr. Magoo

Quote:
Considering all three of the complainants did not seem to understand this, it is unlikely this was done by either the police or Crown, and that is a shame.

DeCoutere retained her own private counsel.  Do you suppose she got her money's worth?

Unionist

[url=https://afateofpossibilities.wordpress.com/2016/03/25/this-isnt-about-th... isn't about the Ghomeshi case[/url]

Quote:

So I know perhaps the evidence wasn’t there, or that the burden of proof wasn’t met. And I don’t fucking care. This isn’t about this one case. This case was inevitable, like watching a lemming marching to its doom.

It’s every fucking time. Every time. The mundanity of the oppression, the predictability of the reaction, the backlash that follows.

You wonder why women reacted angrily when you patronized them with your extensive amateur legal knowledge? Because we’re angry. We’re at boiling point, a writhing mass of female fury, with no where to go. It’s built up over years and now it’s escaping.

I don’t care if the verdict was technically, legally correct. If that’s the system, then the system is broken for women. And just watch us, in our anger, overthrow it.

kropotkin1951

brookmere wrote:

Quote:

DeCoutere explains that part of the reason she didn't tell the police about every single interaction with Ghomeshi was because she was unfamiliar with the legal process.

Given that she is an officer in the RCAF, I find this hard to believe.

The training in the air force includes criminal law, who would have know. Do you know at what stage of their training this is introduced? How about tort law and aboriginal law and labour law, are all those taught as well?

kropotkin1951

I think that we need an evidence rule that requires the accused to disclose all contact with the person alleging the abuse including post incident contacts. We get to look through a persons computer when they are accused of being a pedophile. If there is no contact or only appropriate contact then it can only help an innocent person defend themselves..

Mr. Magoo

I think that many Canadians' "understanding" of Canadian legal processes comes from American television.  Then we're surprised when the "District Attorney" doesn't allow us to "press charges", or we can't "plead the fifth" because they didn't Miranda us.

ed'd to add:

Ontario launches free legal advice program for sex assault survivors

Mr. Magoo

Quote:
I think that we need an evidence rule that requires the accused to disclose all contact with the person alleging the abuse including post incident contacts. We get to look through a persons computer when they are accused of being a pedophile. If there is no contact or only appropriate contact then it can only help an innocent person defend themselves..

Couldn't this currently be subpoenaed?  In fact, wouldn't it be subpoenaed in the case of an accused pedophile?

6079_Smith_W

As unfortunate(though not unexpected) as this is, wishing for laws that would infringe on privacy isn't a solution. If it did manage to pass a court challenge, it is certainly something that would come back to bite us, and have people rightly screaming.

kropotkin1951

6079_Smith_W wrote:

As unfortunate(though not unexpected) as this is, wishing for laws that would infringe on privacy isn't a solution. If it did manage to pass a court challenge, it is certainly something that would come back to bite us, and have people rightly screaming.

Better women continue to be left with no recourse in our system than we infringe on the privacy of men who are accused of raping women?

Lets not forget our current laws are already biting women and if you haven't noticed a lot of people are rightfully screaming now. Of course that is a women's issue so the screams are ignored.

Mr. Magoo

I don't think it would be unreasonable to ask how, once we'd crossed the Rubicon, we would ensure that this could only and ever be used against defendants accused of sexual assualt.

But again, can e-mails and other correspondence NOT be subpoenaed?  Do we need a new law here?

I think it's also possible that Smith is responding to the suggestion that the Crown should independently investigate complainants, to make super-sure that they're not hiding or withholding anything that could jeopardize the Crown's case.  If so, it's not the privacy of rapey men that would be infringed upon.

kropotkin1951

Mr. Magoo wrote:

I think it's also possible that Smith is responding to the suggestion that the Crown should independently investigate complainants, to make super-sure that they're not hiding or withholding anything that could jeopardize the Crown's case.

I believe that the French court system uses something like that process. It is called the civil law inquisitorial system. Our system is not perfect and we know it but we cling to this idea that our courts are the best in the world and any change would be bad. 

Quote:

In France, the Office of the Prosecutor includes a Chief Prosecutor, or Procureur de la République (or procureur général in an appellate court or in the Supreme Court) assisted by deputy prosecutors (avocats généraux) and assistant prosecutors (substituts). The Chief Prosecutor generally initiates preliminary investigations and, if necessary, asks an examining judge, or juge d'instruction, be assigned to lead a formal judicial investigation. When an investigation is led by a judge, the prosecutor plays a supervisory role, defining the scope of the crimes being examined by the judge and law enforcement forces. Like defense counsel, the chief prosecutor may petition or motion for further investigation. During criminal proceedings, prosecutors are responsible for presenting the case at trial to either the Bench or jury. They generally suggest advisory sentencing guidelines, but it remains at the Court's discretion to decide its own sentence, increased or reduced as it sees fit. In addition, prosecutors have several administrative duties.

Prosecutors are considered by French law as magistrates (as in most civil law countries). While the defense and plaintiff are both represented by common lawyers, sitting on the ground in the courtroom, the prosecutor sits on a platform as the court does, although he doesn't participate in deliberation. Judges and prosecutors are trained in the same school, and regard each other as colleagues.

https://en.wikipedia.org/wiki/Prosecutor

Mr. Magoo

Quote:
Our system is not perfect and we know it but we cling to this idea that our courts are the best in the world and any change would be bad.

I'm not convinced that we're all so sure our system is perfect that we feel we cannot change it.  I think the average person standing in line at the bus stop would say the system has plenty of flaws.  But I'm also not sure that we would see mandating the Crown to wiretap complainants to be sure they're not lying is the kind of change we'd like to see.  If it really were, I'd expect to have heard at least mutterings about it prior to Thursday morning.

It's not exactly the same, and I'm not suggesting it's exactly the same, but the suggestion that the Crown should have the power to independently investigate potentially-lying witnesses and complainants does remind me of how, after a terrorist attack, lots of folk are more than ready to line up to be bar-coded, or to "relax" limits on search-and-seizure, or endorse whatever it takes so that "this never happens again".  I don't think these kinds of changes  -- not to the process, but to the principles -- should be made just because we're really, really pissed off at Jian Ghomeshi, or his counsel, or Justice Horkins, or "the legal system" as some vague, misunderstood entity.

6079_Smith_W

I'm talking about all things which are an infringement on the right to a fair trial, but specifically k's suggestion. 

Of course if we all know he's guilty then why bother with disclosure laws or trials at all. Just throw them in the can. After all, the viciims have it far worse so that is all the justification we need, right?

 

Cody87

kropotkin1951 wrote:

Better women continue to be left with no recourse in our system than we infringe on the privacy of men who are accused of raping women?

Lets not forget our current laws are already biting women and if you haven't noticed a lot of people are rightfully screaming now. Of course that is a women's issue so the screams are ignored.

I don't want to say gender has nothing to do with it, because obviously it does for this particular offense where women are overwhelmingly the victims.

But the system wasn't designed to protect men, or bite women, as you imply. Regardless of the crime, had the complainants been male and the defendant female, and the sole evidence was the testimony of males who were all found to be trying to outright deceive the court, then the female defendant would have had the same verdict as in this trial.

Mr. Magoo

Quote:
But the system wasn't designed to protect men, or bite women, as you imply.

I think a lot of people have a "moment" when they realize that the system wasn't even designed to foster a level playing field between the accused and the accuser.

But when the accused is a man, or a white man, or worst of all a rich, powerful, influential white man, then we embrace the narrative that the system was designed to help rich, powerful, influential white men.

kropotkin1951

Cody87 wrote:

I don't want to say gender has nothing to do with it, because obviously it does for this particular offense where women are overwhelmingly the victims.

But the system wasn't designed to protect men, or bite women, as you imply.

I didn't mean to imply anything I was merely describing what the system actually does and in sexual assault cases the system bites.

Unionist

Mr. Magoo wrote:
But I'm also not sure that we would see mandating the Crown to wiretap complainants to be sure they're not lying is the kind of change we'd like to see. 

You've started repeating this concept as if someone here had ever actually proposed it. Why not drop it?

The question was: Did the Crown tell the witnesses that they could possible be burned like toast if they didn't voluntarily discloe every scrap of potentially relevant information well in advance of the trial - and guide them as to what might be relevant? That's not much of an intrusion on civil liberties. In this case, I have a very strong feeling it would have led to a conviction.

 

kropotkin1951

6079_Smith_W wrote:

I'm talking about all things which are an infringement on the right to a fair trial, but specifically k's suggestion. 

So in your opinion the French and other European systems do not render a fair trial. I disagree but you are entitled to your opinion that we are the best justice system ever designed and any move to improve it would be a mistake.

6079_Smith_W

Because in its application it is, even if you don't count laws which criminalize the actions of certain people.

kropotkin1951

Our sexual assault laws need an upgrade and indeed it is a complex problem.

 

6079_Smith_W

I think it would be clearer how unfair a law like that is if it was used on someone we didn't consider a monster. 

And you can be sure it would be.

6079_Smith_W

And sure they need an upgrade - in protecting victims, not in removing protections from accused or lowering the burden of proof.

kropotkin1951

So you think the European system is unfair like I said your entitled to that opinion but I notice that you have a very tall horse.

brookmere

kropotkin1951 wrote:
Our sexual assault laws need an upgrade and indeed it is a complex problem.

If Ghomeshi had just punched them without engaging in any romamtic preliminaries it would have been simple assault.

Does that part of the law need updating too? Because if that had been the charge the trial and verdict would have turned out the same.

 

kropotkin1951

brookmere wrote:

kropotkin1951 wrote:
Our sexual assault laws need an upgrade and indeed it is a complex problem.

If Ghomeshi had just punched them without engaging in any romamtic preliminaries it would have been simple assault.

Does that part of the law need updating too? Because if that had been the charge the trial and verdict would have turned out the same.

if he had punched them it would have been assault, what don't you get about that. Do you think he would have sent e-mails to make it look like they agreed to being punched?

Cody87

kropotkin1951 wrote:

brookmere wrote:

kropotkin1951 wrote:
Our sexual assault laws need an upgrade and indeed it is a complex problem.

If Ghomeshi had just been accused of punching them without engaging in any romamtic preliminaries he would have been charged with simple assault.

Does that part of the law need updating too? Because if that had been the charge the trial and verdict would have turned out the same.

if he had punched them it would have been assault, what don't you get about that. Do you think he would have sent e-mails to make it look like they agreed to being punched?

What a dishonest response. You're not going to convince anyone (except those that already agree with you) by pretending to not understand the argument. But I "fixed" the argument brookmere made, if you want to take another shot.

Slumberjack

Some will ask:  why defend this particular hill when other forms of injustice go begging for our attention?  Notwithstanding that a lot of people in general find the latest news to trend in the popular domain engaging, as opposed to our being exclusive in deciding what disgusts us, or that proposing questions to the prevailing attitude represents a paring down of what we're willing to argue on behalf of to sexual assault.  In the current mood it does seems prudent to be clear at this point about what motivates us.  I don't know, after this case I'm a little unclear as to what people still consider important in terms of the legalities and processes that have been permitted over time...what can be discarded as anachronisms that don't seem to fit with how people want things to play out these days.  All the same, we're seeing more than enough reactionary sentiment being expressed about this case with the potential for wider ramifications, which appear to derive their legitimacy from outside of the confines of the law as it exists, as delimiting as that law certainly is across many a domain.  Reason enough in it's own right for a response if people don't mind, please and thanks.  And if they do mind, that's too bad, to put this position as clear as I can.

 

Pondering

I read an article that said there is a movement to have separate courts for sexual assault cases and trained prosecutors.

Rather than searching an accused computer how about having disclosure rules. Any evidence that will be used by the defence should also be available to the crown.

Pondering

Rev Pesky wrote:

Pondering wrote:
...Not if it is something you do habitually, write letters in general or write love letters. I've never done that so it might stick in my mind but not necessarily especially if there was no response to it.

She may also have remembered writing a letter but not the order of events, that she wrote it after that incident, because at the time she didn't think of it as an assault.

This does not explain why all three of the complainants apparently forgot things. In any case, Lucy DeCoutere wrote the letter within 24 hours of the alleged assault. To imagine that she could well remember what happened one day, and then forgot what happened the next strains credibility, especially when one considers that going to trial would have brought the events to the forefront of her mind.

I do not agree with the theory that the prosecution was responsible for this. The responsibility lies completely with the complainants. They are the ones who withheld details of events, and then claimed that the events had never happened. As everyone should know, you can't force someone to tell the truth if they don't want to. In addition, the evidence of the events was held by the defence, and while the prosecution is forced to reveal their case to the defence, the defence does not have to reveal their case to the prosecution.  I do agree that the prosecution should probably treat all statements as false until they can marshal the evidence to support them, or in the case where a witness is unconnected personally with the events.

So your explanation is that all three women deliberately lied or deliberately withheld information. Why would they do that? Think women get off on being publically humiliated?

I don't remember every essay I wrote nevermind when I wrote each one. Why would I remember every letter I ever wrote if I was a letter writing person?

 

kropotkin1951

Cody87 wrote:

kropotkin1951 wrote:

brookmere wrote:

kropotkin1951 wrote:
Our sexual assault laws need an upgrade and indeed it is a complex problem.

If Ghomeshi had just been accused of punching them without engaging in any romamtic preliminaries he would have been charged with simple assault.

Does that part of the law need updating too? Because if that had been the charge the trial and verdict would have turned out the same.

if he had punched them it would have been assault, what don't you get about that. Do you think he would have sent e-mails to make it look like they agreed to being punched?

What a dishonest response. You're not going to convince anyone (except those that already agree with you) by pretending to not understand the argument. But I "fixed" the argument brookmere made, if you want to take another shot.

Do you think he would have sent e-mails if he had no other relationship with these women except for punching them. Why are you pretending not to understand that this case is all about context and punching someone is just not the same context as claiming they had "rough" sex with him.

kropotkin1951

This is what the case is about and its about our rape culture and women's anger over the injustice done to them by our system. I can't say it as well as a woman so I will quote an eloquent one.

Quote:

How can you be so blind? How can you insert yourself into a woman pouring her grief out, to tell her that legally, she has no case? That what happened to her, didn’t factually happen. To throw a smothering blanket on the fire igniting in her. She has no reality. The law is the reality. It is the neutral, the official record. It is gas lighting on a massive scale.

So I know perhaps the evidence wasn’t there, or that the burden of proof wasn’t met. And I don’t fucking care. This isn’t about this one case. This case was inevitable, like watching a lemming marching to its doom.

It’s every fucking time. Every time. The mundanity of the oppression, the predictability of the reaction, the backlash that follows.

You wonder why women reacted angrily when you patronized them with your extensive amateur legal knowledge? Because we’re angry. We’re at boiling point, a writhing mass of female fury, with no where to go. It’s built up over years and now it’s escaping.

I don’t care if the verdict was technically, legally correct. If that’s the system, then the system is broken for women. And just watch us, in our anger, overthrow it.

https://afateofpossibilities.wordpress.com/2016/03/25/this-isnt-about-th...

pookie

Cody87 wrote:

pookie wrote:

Unionist wrote:

pookie wrote:

With respect, Unionist, this could only be argued by someone who was not following the trial itself, but, perhaps, relying on brief accounts of it in the media.

Actually, pookie, I base my argument on the judge's written decision. I didn't follow the trial (is there a transcript??) nor the media accounts. Did the judge misconstrue the evidence? Do you have sources of information about what went on that I'm missing?

The transcript is not yet available, but the trial was live-tweeted by numerous reporters in the courtroom.

I did not read the verdict in the same way that you did.  

I don't see this verdict as "good".  

But it is unreasonable to put all of the responsibility on the Crown.  The complainants made pretty specific statements at various points, that were thrown into at least some doubt by letters and emails and photos involving them in Ghomeshi's possession.  As far as I know, their participation in the creation of that documentary evidence was entirely voluntary.  If it was forgotten, I fail to see how even vigorous questioning by the Crown of events they could not possibly know (ie., that Lucy Du Coutere spent time at a park with Ghomeshi after the incident and appeared in a photo with him) could have uncovered that.

If you are suggesting that the Crown should have subpoenaed their computers and accounts for forensic recovery, I think that is competely unrealistic, a huge invasion of privacy and, again, would open up all complainants to further abuse from the accused.

In this case, it turns out there was an astonishing amount of that documentary evidence and, yes, it would have been great for the Crown to know about it.  But having the Crown do fishing expeditions into the personal lives of all complainants would be a gross overreaction.  And that is why, IMO, the Crown cannot be faulted for failing to do that here. 

I have a question about this though. You're saying that if the Crown was to go fishing through personal emails, these personal emails would have to be revealed to the defendant (or at least the defendant's attorney).

My understanding is that the ~5000 emails between two of the complainants was discovered because the defendant's attorney used a legal process to gain access to the complainant's emails.

(As an aside, I find the fact that an alleged perpetrator has a process to access the personal ANYTHING of his alleged victims disgusting, even if in this case it revealed outright deception of the court. Worst of all it seems like the complainants weren't aware of it - I can't see them denying personal communication between each other if they'd known Ghomeshi's lawyer had access to their emails.)

But, back to my main question, since the alleged perpetrator already seems to have access to this sort of information (unless I'm misunderstanding something), then what's the difference if it's disclosed by the Crown?

That's in this case.  I'm talking about information that would be disclosed to the Crown that the accused would have no way to get access to or, even, necessarily, know about.   

No accused is going to be able to subpoena all of the complainant's emails going back 13 years, at least, not easily.  In this case, though, the complainants actually revealed, in media interviews, that they had been in touch with each other in the months since coming forward.  That made alot of lawyers, me included, nervous. Not because it suggested shadiness on their part, but because it allowed the accused to get an order for any record of such communication to be disclosed and permitted an argument for collusion, especially when the volume was so large.    

mark_alfred

Thoughts on Lucy DeCoutere from Jesse Brown

I posted the link above previously but it got lost in the clutter of squabbling here so I figured I'd post it again.  I completely agree with Canadaland's Jesse Brown:  Lucy is a hero. 

Given that, I was happy to read on Rabble about the rally of support that was organized.

http://rabble.ca/news/2016/03/we-want-to-be-believed-survivors-and-allie...

Quote:
Jennifer Hollett, a political activist and former NDP federal candidate, was one of the rally's organizers. She said the idea for the event came up as she and other activists were discussing when the verdict of Ghomeshi's trial was revealed.

"A few weeks ago we were talking about the day the verdict would be delivered and how important it was to claim space for survivors of abuse," she said, "and we wanted to say to survivors everywhere: we believe you."

mark_alfred

pookie wrote:

  In this case, though, the complainants actually revealed, in media interviews, that they had been in touch with each other in the months since coming forward.  That made alot of lawyers, me included, nervous. Not because it suggested shadiness on their part, but because it allowed the accused to get an order for any record of such communication to be disclosed and permitted an argument for collusion, especially when the volume was so large.    

I gather that that apparently blew the similar fact argument.

pookie

--

pookie

Unionist wrote:

pookie wrote:

I did not read the verdict in the same way that you did.  

I don't see this verdict as "good".  

I don't recall saying the verdict was "good". I don't see it as "good" either.

Quote:
But it is unreasonable to put all of the responsibility on the Crown.  

I haven't put "all" the responsibility on the Crown. Obviously some of the complainants said things to the media, the police, to Ghomeshi himself, etc., which were distinctly unhelpful to their case. My concern is that no one helped them understand the importance of being transparent and truthful and consistent and complete in their statements.

Quote:
If you are suggesting that the Crown should have subpoenaed their computers and accounts for forensic recovery, I think that is competely unrealistic, a huge invasion of privacy and, again, would open up all complainants to further abuse from the accused.

No, I am certainly not suggesting that. But I'd like some smidgen of indication that the Crown asked the complainants to voluntarily hand over any emails (for example) that might bear on the events in question - especially emails that Ghomeshi himself would already have. Do you think the Crown should have done just that one thing - if not, why not?

Quote:
In this case, it turns out there was an astonishing amount of that documentary evidence and, yes, it would have been great for the Crown to know about it.  But having the Crown do fishing expeditions into the personal lives of all complainants would be a gross overreaction.  And that is why, IMO, the Crown cannot be faulted for failing to do that here. 

I absolutely fail to understand how it would be a "fishing expedition" to ask the complainants to disclose, to the Crown, anything relevant (in the Crown's analysis - not a layperson complainant's opinion) that might come up to destroy credibility, or that might corroborate the witness accounts, etc.

As for the "personal lives of all complainants" - that's a gross overreaction. We're not talking about "all complainants". We're talking about these complainants - whose allegations dealt squarely with their "personal lives", and whose credibility is the only thing that matters in securing justice.

1. I don't know what to say about the idea that they needed to have it explained to them the need to be transparent and truth and consistent and complete.  I think that the oath that would have been administered to them before their police statements would have been a pretty good indication.  We have zero evidence that the Crown/police didn't tell them that, unless you take their spectacularly bad cross-examinations as evidence of what they were or were not told beforehand.

But, well, I would kind of hope that they would have known that already.

2. Why do you assume the Crown didn't ask about emails?  I don't.  It's possible the Crown asked them to reveal any "communication" with Ghomeshi surrounding the events. But nope, I certainly don't think one can say that the Crown didn't ask.

3. I use the term "fishing expedition" to refer to the Crown using means to get information that the complainants don't voluntarily disclose.  I mean, if the Crown asks and they don't tell, and the Crown isn't sure whether that's the entire story, then how exactly is the Crown supposed to get that information?

4. I don't even understand your distinction between "all" complainants and "these" complainants.  Maybe YOU are talking about "these complainants".  I am talking about the implications of this case, the criticism of the Crown's behaviour, and the possibility future decisions that might be taken, with respect to ALL future complainants of sexual assault. 

You made some pretty sweeping statements in an earlier post analogizing your duty as an investigator to the Crown's duty in a case like this.  I assumed that those duties would apply to any complainant in a sexual assault proceeding.  Not just "these" complainants.

 

pookie

Unionist wrote:

Ok, pookie - in the absence of a transcript, I've gone back to look at some of the live tweets (these were by Laura Fraser of the CBC).

And here we see - clearly, IMHO - the indictment of the Crown's irresponsible behaviour. This is from Day 4 (Feb. 5) of the trial:

Laura Fraser wrote:
DeCoutere explains that part of the reason she didn't tell the police about every single interaction with Ghomeshi was because she was unfamiliar with the legal process.

"I thought that was something that would come out when the Crown did their investigation, which I now understand doesn't happen."

She said that her only experience of the legal process and being inside a courtroom comes from watching legal dramas, which "rely on the U.S. paradigm."

She believed that her police statement was "the first step in a longer exposition that would be teased out later."

This was not clear to her until she was called in to testify earlier than expected, she says. She realized she would have less time to prepare and speak with the Crown -- and that there were things they needed to know before she came into court so that... "there would be as few surprises as possible."

[my emphasis]

Some journalist should ask the Crown what they have to say about that. Same goes for the police. The Crown and the police represent us (in theory) - the public interest. We have a right to know why and how they screw up important cases like these.

 

I am going to wait for the transcript of her exam in chief.  I would also like to see her police statement.

But, to be clear, I have no problem with someone asking the Crown and police those questions.

 

RevolutionPlease RevolutionPlease's picture

Mr. Magoo wrote:

Quote:
You seem to have missed the fact that Marie Henein - not their friend, not using torture - got these witnesses to say everything.

Not by befriending them, or earning their trust, or by asking the right questions.

She simply produced concrete evidence that was undeniable.

If I were to claim -- which I might -- that I've never, ever, in my whole life been to the CN Tower, and someone produces photos of me eating in the revolving restaurant, and doing the Edge Walk, it's not like they've somehow convinced me to own up.  They've shown me proof that I can no longer plausibly deny.  Of course my story HAS to change.

Quote:
And what's this "something they don't wish to say"?? If they didn't "wish to say" it, why did they say it in open court, in response to Henein?

Because Henein was holding concrete evidence.

 

Concrete evidence of fools gold?

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