That's a common misconception that many make about criminal trials. A decision of "not guilty" does not indicate that the accused is "innocent". The judge was aware of that common misconception and that is why, I assume, the language that I pointed out in post #797 was included.
Ghomeshi Trial Begins
Mon, 2016-03-28 22:12
#802
Mon, 2016-03-28 22:18
#803
The accused is always considered innocent of the charges at the beginning of the trial and throughout, until a guilty verdict is rendered. The status of 'innocent' doesn't change one iota with an aquittal. An aquittal doesn't merely suspend his guilt because the accusers have not provided compelling evidence with which to change the assumption of innocence in this case.
Mon, 2016-03-28 22:18
#804
A decision of "not guilty" does not indicate that the accused is "innocent".
Correct. And it especially does not indicate that the accusers were not victims. But some people have a very hard time simply retracting a mistake.
The judge was aware of that common misconception and that is why, I assume, the language that I pointed out in post #797 was included.
Correct. He didn't want anyone to conclude from his verdict that the complainants had lied about having been assaulted. He himself never drew that conclusion. But some seem eager to do so.
Tue, 2016-03-29 02:17
#805
...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?
I could accept that one person may have difficulty remembering specific events. It seems a bit strange to me that all three compainants had very good memories up to a point, and then all three forgot what happened after a certain point.
I should be clear about this. I agree absolutely that subsequent events don't necessarily reflect on the rightness of the complaint. Having said that, it's also true that the complainants lied to strengthen their testimony. As most people who lie do, they did it because they didn't think they would be caught. A very strong case could be made for perjury charges,
No it isn't. What proof do you have that they lied?
They didn't have "very good memories" they remembered shocking events. I remember shocking events much more easily than non-shocking events. I remember being assaulted. I don't remember what I ate that day.
That all three remembered the shocking part of what happened to them and not the other parts suggests to me that their reaction, to remember the important stuff and not the mundane stuff, is actually quite normal.
I am more upset by the judge passing a verdict against the women who were not supposed to be on trial than I am about his aquitting Ghomeshi out of lack of evidence.
This entire case was "he said she she she said" and as usual the one he who never even spoke is deemed by the courts more credible than the 3 who did speak but I will tell you something. Ghomeshi did not win this trial. In this case the women may feel humiliated but in actual fact they have the sympathy of the majority, not Ghomeshi.
Ghomeshi may not face prison but he is facing justice, and will perhaps pay an even higher price. He could have earned some sympathy and a shot at public rehabilitation by pleading guilty to lessor charges. He is a pariah from his high-brow social circle. I wouldn't sit at a dinner table with him. I'd consider it an insult to be asked to. He is better known for his abuse of women than he is for his former talk show. He has ruined Moxy. Nobody wants to interview him.
The judge may not have found Lucy credible but the public sure has. She has enormous respect, even more than when she first came forward. For many of us she is a martyr to the cause.
There seems to be this underlying belief that as long as someone isn't criminally guilty then shouldn't be punished by public opinion. I can form my own independent opinion on who was credible in this trial and in my view it was 100% the women. I have no problem at all with what they remembered and what they didn't remember.
The justice system is intended to replace vigilante justice. In the case of sexual assault the justice system has failed and it's no surprise. Sexual assault by its nature is often he said she said because it occurs in private and there are often no physical wounds. That's why it is often not reported. It's why I never reported. I understand that it is difficult for a justice system to determine guilt based on word against word. It's a rare crime that has no physical evidence.
The great thing about the court of public opinion is that we don't have to wait for someone to break the law to shun them. We can decide that they are not someone we want to know. Ghomeshi's career is over and he deserves it to be over.
Lucy is a feminist hero. People want to interview her, hear what she has to say:
http://www.theguardian.com/world/2016/mar/25/jian-ghomeshi-trial-lucy-de...
If Ghomeshi gets any interviews they will be with a tabloid. I can't imagine who will hire him to do anything. He isn't even big deal enough to write a book.
Tue, 2016-03-29 02:26
#806
You know what's really amazing? The less than exacting standards by which some are willing to toss people they don't like into prison. A laisse faire approach as it were to the question of who belongs behind bars. It's also amazing that people are inclined to believe that with DeCoutere and the others, unless their hands are being held by police and prosecutors so that they're being told exactly what to say and what to produce as evidence, that otherwise they're completely helpless and thoughtless as to what is being expected of them during their interviews and statements. But you know, that amazement is becoming less so the more we're bearing witness to exchanges of opinion like this.
I don't see what happened after the attacks as pertinent anymore than sexual history is. DeCoutere is a strong smart woman who has done nothing wrong.
Most opinions I have read accept the evidence didn't meet the necessary threshold to send Ghomeshi to prison under our system.
Most, including myself, are taking exception to the system and/or the judge's opinion concerning what is and isn't natural for women to do or to remember in reaction to assault of this nature.
You want to understand, read:
http://www.theguardian.com/world/2016/mar/25/jian-ghomeshi-trial-lucy-de...
Tue, 2016-03-29 05:12
#807
I don't see what happened after the attacks as pertinent anymore than sexual history is.
Normally it isn't pertinent, and it is against the law in fact for the defence to review a complainants sexual history, unless, for instance, a complainant states that as a result the perpetrator's alleged actions, triggering sensations occur to the extent that the presumed victim cannot stand the sound of the alleged abusers voice or anything about him, and subsequently we find out in the evidence that this is not exactly the case, that the alleged victim was actively seeking a relationship of some kind with the accused, after having it said under oath and in the statements taken under oath that the mere thought of him greatly disturbed their thoughts in a negative way.
DeCoutere is a strong smart woman who has done nothing wrong.
Would a smart person leave a paper trail of a conspiracy to target and 'flush' the subject of their attention? Sending flowers and complementing an alleged abuser about their hands, and then. after so many attempts to engage the abuser in a relationship, attempt to explain all of that as 'flattening out a negative,' constitutes a smart line of response under oath? Openly declaring in emails that her background as an actor will come in handy up on the stand is more right than wrong?
Most, including myself, are taking exception to the system and/or the judge's opinion concerning what is and isn't natural for women to do or to remember in reaction to assault of this nature.
I believe the judge addressed that very issue throughout in his findings, i.e.:
[64] An inability to recall the sequence of such a traumatic event from over a decade ago is not very surprising and in most instances, it would be of little concern. However, what is troubling about this evidence is not the lack of clarity but, rather, the shifting of facts from one telling of the incident to the next. Each differing version of the events was put forward by this witness as a sincere and accurate recollection. [65] When a witness is comfortable with giving differing versions of the same event, it suggests a degree of carelessness with the truth that diminishes the general reliability of the witness.
You know, as the Harper regime demonstrated so often, having one's ideological underpinnings hold sway where it concerns the administration of justice, such that it is, is ultimately detrimental to everyone's well being. Except of course if one is a particular type of feminist where it seems desirable for one's psychological status to outweigh the ability of a defence team to mount a challenge to the evidence being presented. Apparently we must change the rules of evidence that have been in place since 1893 in order to obtain an outcome that better accords with one's ideology. Rules of evidence prior to this, from the early nineteenth century and beyond are apparently good enough for some.
I believe the Americans have rolled out that kind of thinking in full measure where it concerns the accused being held at Guantanamo Bay.
Tue, 2016-03-29 06:37
#808
You want to understand, read:http://www.theguardian.com/world/2016/mar/25/jian-ghomeshi-trial-lucy-de...
What are we to make of Decoutere's assessment here? It's not about a woman's professional credentials, it's about her appearance, and what names have been ascribed to her by others?
Opposite him was Henein, Ghomeshi’s star lawyer, the Hannibal Lecter that anyone following the case has heard about. She’s very ... angular. There’s no better way to describe her. She wears stilettos and blazers with notched collars and zippers. She is beautifully put together, manicured from top to tail in a way that conveys control.
The judge deals with the matter of Decoutere's challenges with memory retention here:
It became clear at trial that Ms. DeCoutere very deliberately chose not to be completely honest with the police. Her statement to the police was what initiated these proceedings. This statement was subject to a formal caution concerning the potential criminal consequences of making a false statement. It was given under oath, an oath to tell the truth, the whole truth and nothing but the truth, not a selective version of the truth. Despite this formal caution and oath, Ms. DeCoutere proceeded to consciously suppress relevant and material information. This reflects very negatively on her general reliability and credibility as a witness. It indicates a failure to take the oath seriously and a wilful carelessness with the truth.
Tue, 2016-03-29 12:34
#809
Apparently we must change the rules of evidence that have been in place since 1893 in order to obtain an outcome that better accords with one's ideology. Rules of evidence prior to this, from the early nineteenth century and beyond are apparently good enough for some.
The facts are the facts. What other 19th century laws do you think we should also be following. During this period of great thinking in justice in 1885 we got the Potlatch Laws and Head Tax Laws. How about the change at the same time to a broader law targeting all homosexual male sexual activity as gross indecency that was passed in 1892.
If our laws are not protecting women then we need to change them to ensure that women have an avenue to justice when they are attacked.
Of every 100 incidents of sexual assault, only 6 are reported to the police
- 1 - 2% of "date rape" sexual assaults are reported to the police
- 1 in 4 North American women will be sexually assaulted during their lifetime
- 11% of women have physical injury resulting for sexual assault
- Only 2 - 4% of all sexual assaults reported are false reports
- 60% of sexual abuse/assault victims are under the age of 17
- over 80% of sex crime victims are women
- 80% of sexual assault incidents occur in the home
- 17% of girls under 16 have experienced some form of incest
- 83% of disabled women will be sexual assaulted during their lifetime
- 15% of sexual assault victims are boys under 16
- half of all sexual offenders are married or in long term relationships
- 57% of aboriginal women have been sexually abused
- 1/5th of all sexual assaults involve a weapon of some sort
- 80% of assailants are friends and family of the victim
The above noted statistics have been taken from various studies across Canada. While the numbers can never been 100% accurate, a few key generalizations can made:
Tue, 2016-03-29 12:52
#810
What other 19th century laws do you think we should also be following.
The 1893 date refers to the original rules of evidence act, which has been subsequently amended since then. The law against committing murder is much older than that. You're not suggesting that we do away with those old laws against murder?
That percentages list is no doubt compelling and tragic, but it shouldn't give rise to the specter of posse justice, or shouldn't it? Left unclear in discussions of this nature is where people are actually situated these days when it comes to what they prefer to see in a justice system.
Yes, the law should indeed protect victims. What it shouldn't do is to protect liars.
Tue, 2016-03-29 13:25
#811
The judge deals with the matter of Decoutere's challenges with memory retention here:
It became clear at trial that Ms. DeCoutere very deliberately chose not to be completely honest with the police. Her statement to the police was what initiated these proceedings. This statement was subject to a formal caution concerning the potential criminal consequences of making a false statement. It was given under oath, an oath to tell the truth, the whole truth and nothing but the truth, not a selective version of the truth. Despite this formal caution and oath, Ms. DeCoutere proceeded to consciously suppress relevant and material information. This reflects very negatively on her general reliability and credibility as a witness. It indicates a failure to take the oath seriously and a wilful carelessness with the truth.
In my opinion the judge's opinion is wrong. Lucy did not very deliberately withhold anything. She was completely honest. She did not deliberately suppress relevant and material information. Judges are human. They can be wrong. This judge was wrong because he doesn't understand what "normal" behavior is for victims who are targeted by men like Ghomeshi. His entire opinion is based on false premises about how victims behave and what they remember.
That is why women are suggesting a separate court for sexual assault just like there is a separate family court so judges are more knowledgable in that field.
Tue, 2016-03-29 13:47
#812
I believe the family court you're referring to is civil rather than criminal (IE, where it's a dispute between individuals, like two spouses, and not involving the crown). Criminal offences, whether involving family members or involving people who are not family members, would be dealt with in the same court -- there's no separate "family court" for criminal matters involving family members (IE, no special court for a person who assaults his/her spouse) to my knowledge.
Tue, 2016-03-29 13:51
#813
In my opinion the judge's opinion is wrong. Lucy did not very deliberately withhold anything. She was completely honest. She did not deliberately suppress relevant and material information. Judges are human. They can be wrong. This judge was wrong because he doesn't understand what "normal" behavior is for victims who are targeted by men like Ghomeshi. His entire opinion is based on false premises about how victims behave and what they remember.
For my benefit - would you mind just indicating which specific section or sections of his decision re Lucy that you consider as wrong? Or just an example will do, given your view of his whole opinion.
Tue, 2016-03-29 14:35
#814
Some posters here are displaying a fantastically insufficient understanding of the burden of proof and the assumption of innocence.
A judge is not some Berkeleyan idealist whose mere thoughts constitute reality. A judge does not have the power to decree whether an event happened, or whether someone is "really a victim". The singular purpose of a judge is to determine whether or not the guilt of the accused can be determined beyond any reasonable doubt.
'Reasonable doubt' is a term that is used so much it becomes somewhat bleached of it's meaning as we stop to actually think of what it means and instead merely ascribe it to the contexts in which it is usually used. So for some refreshment, 'reasonable doubt' demands a burden of proof on the part of the prosecution that some imaginary "reasonable person" would find the version of the story in which the accused person committed the crime to be the only plausible account of what happened.
The assumption of innocence is not some metaphysical decree by the God of Justice that a person cannot have performed some act or that there can be no such thing as victimization until the magical process by which 'reasonable doubt' is extinguished has been performed by some Judge. The event either happened or didn't happen before the court case. People were either victimized or they weren't. Those concepts don't hang on the eventual decision by some judge.
The assumption of innocence and 'reasonable doubt' are designed to serve a simple function: to protect individuals from arbitrary state power by putting a heavy burden of proof onto the prosecution. The premise is that it is better to let a guilty person go free than to put an innocent person in prison — that's the basis of innocent until proven guilty. A judge could very well believe that a person had committed a crime, but find that the burden of proof was not met. That's the whole point. The notion, as some here are suggesting, that a judge's ruling can somehow either prove or disprove that an event actually occured is simply preposterous.
The judge's personal belief AND whether the event 'actually happened' are intentionally excluded from the process in favor of an epistemological burden of proof. And so they should be, because only the people who were actually there can "know" what 'actually happened', and even they are sometimes wrong. We don't have access to what 'actually happened'. If we did, there would be no need for lawyers and courts at all.
What's interesting about all this is that, if you take a look at the legal system, the strict requirements of the burden of proof demanded by 'reasonable doubt' are almost never actually required by the legal system. People get sent to prison all the time on the basis of frivolous witness testimony — especially the testimony from cops. It seems, rather, that the standard of justice which protects the accused up to the limit of reasonable doubt is pretty much only applied in sexual assault cases. This is probably especially true because, unlike in this case, we often rely on juries. Except in sexual assault cases, the accused is usually found guilty. That's pretty astonishing.
Personally, I would like it very much if far fewer people were sent to prison. I think it would be a great thing if the prosecution was actually forced on a regular basis to demonstrate proof beyond a reasonable doubt. But they don't, and innocent people go to prison regularly. Meanwhile, the [in]justice system is undeniably failing to protect women and other survivors of sexual assault.
Tue, 2016-03-29 15:01
#815
In my opinion the judge's opinion is wrong. Lucy did not very deliberately withhold anything. She was completely honest. She did not deliberately suppress relevant and material information. Judges are human. They can be wrong. This judge was wrong because he doesn't understand what "normal" behavior is for victims who are targeted by men like Ghomeshi. His entire opinion is based on false premises about how victims behave and what they remember.
For my benefit - would you mind just indicating which specific section or sections of his decision re Lucy that you consider as wrong? Or just an example will do, given your view of his whole opinion.
I was referring specifically to the judge's claim that Lucy very deliberately withheld any information.
http://www.cbc.ca/news/canada/toronto/horkins-decision-ghomeshi-1.3505808
The entire trial seems to have been about what happened after the attacks not the attacks themselves. No one seems to think the attacks didn't happen, nor that the women gave consent.
If the attacks did happen, and he didn't gain consent IN ADVANCE then he is guilty regardless of what happened after the attacks. It wouldn't matter if one or all three married him sequencially after the fact.
I am not challenging the judge's decision on points of law. I am challenging his opinion of the women and their motives.
[136] Each complainant in this case engaged in conduct regarding Mr. Ghomeshi, after the fact, which seems out of harmony with the assaultive behaviour ascribed to him. In many instances, their conduct and comments were even inconsistent with the level of animus exhibited by each of them, both at the time and then years later. In a case that is entirely dependent on the reliability of their evidence standing alone, these are factors that cause me considerable difficulty when asked to accept their evidence at full value.
Their conduct after the fact is not out of harmony with the assaultive behavior ascribed to Ghomeshi. It was perfectly normal and in keeping with the way women commonly react. That the judge doesn't know this suggests he is insufficiently educated on the topic of female reaction to date assault therefore was not qualified to judge on this case.
Tue, 2016-03-29 15:28
#816
I believe the family court you're referring to is civil rather than criminal (IE, where it's a dispute between individuals, like two spouses, and not involving the crown). Criminal offences, whether involving family members or involving people who are not family members, would be dealt with in the same court -- there's no separate "family court" for criminal matters involving family members (IE, no special court for a person who assaults his/her spouse) to my knowledge.
Juvenile court then. Civil or criminal my point is certain types of crime require specialized expertise on the judge's part expertise that this judge lacked. Given that sex crimes are common and rarely result in charges nevermind conviction I'd say we need a special system to deal with it.
Tue, 2016-03-29 15:57
#817
I believe the family court you're referring to is civil rather than criminal (IE, where it's a dispute between individuals, like two spouses, and not involving the crown). Criminal offences, whether involving family members or involving people who are not family members, would be dealt with in the same court -- there's no separate "family court" for criminal matters involving family members (IE, no special court for a person who assaults his/her spouse) to my knowledge.
Juvenile court then. Civil or criminal my point is certain types of crime require specialized expertise on the judge's part expertise that this judge lacked. Given that sex crimes are common and rarely result in charges nevermind conviction I'd say we need a special system to deal with it.
Agreed.
Tue, 2016-03-29 16:51
#818
That percentages list is no doubt compelling and tragic, but it shouldn't give rise to the specter of posse justice, or shouldn't it? Left unclear in discussions of this nature is where people are actually situated these days when it comes to what they prefer to see in a justice system.
Yes, the law should indeed protect victims. What it shouldn't do is to protect liars.
There needs to be some changes made. Having advocated before both labour and human rights tribunals it is my experience that says with vulnerable populations some of the normal evidence rules need to be altered so that the playing field is level and not tilted towards those that would deny people their rights or discriminate against them. I think the same logic applies to sexual assault precisely because of the numbers I posted above.
For instance in a claim of anti-union animus it is only necessary to show that anti-union sentiment exists it is not a defence like most other issues that other factors existed even if they are arguably more significant. A little anti-union bias gets a company convicted of anti-union animus. In human rights law in Canada we use a rule that says a company must accommodate to the point of undue hardship. In the states for instance the test is a de minimus test i.e. if it costs the company any amount of money to accommodate someone then it doesn't matter.
Prior to changing our laws about evidence we allowed prior sexual history to be introduced but that law was changed so that it is now inadmissible. I think that change was both necesary and just however people screamed bloody murder about that rule change using the same arguments that you are still using. I think that these women were blind sided by evidence that should have been disclosed to the Crown the same way that it would have been disclosed if the women had sued in the civil courts instead of going through the criminal justice system.
When we are dealing with vulnerable people many of whom have suffered PTSD from the sexual assaults I think we need to get away from "gotcha" adjudicating. As I also mentioned above most European countries do not use our system for trying crimes and instead they use a system where an officer of the court gets to investigate fully. I do not think that the people of Europe are being railroaded into prisons because of the system they use. I think for sexual assault cases we can adopt some of their investigation tools without producing an unjust system.
Tue, 2016-03-29 18:21
#819
'Reasonable doubt' is a term that is used so much it becomes somewhat bleached of it's meaning as we stop to actually think of what it means and instead merely ascribe it to the contexts in which it is usually used. So for some refreshment, 'reasonable doubt' demands a burden of proof on the part of the prosecution that some imaginary "reasonable person" would find the version of the story in which the accused person committed the crime to be the only plausible account of what happened.
I know you said alot of other stuff, and I agree with the general thrust of much of it, but this is not an accurate description of proof beyond a reaosnable doubt, at least, not in Canada. It absolutely does not refer to an abstract "reasonable person", nor does it require that the Crown's theory be the "only plausible" account of what happened.
Reasonable doubt is applied on an individual basis by a trier of fact. It is all about what SHE thinks has been proved - not what she thinks someone would think about it.
Tue, 2016-03-29 18:47
#820
Horkins provided something of a working definition in his written judgement.
The expression proof "beyond a reasonable doubt" has no precise definition, but it is well understood. The Supreme Court of Canada outlined a suggested model jury charge in R.v. Lifchus1. This is the definitive guide for criminal trial courts in Canada. It is worth setting out here verbatim:
- The term "beyond a reasonable doubt" has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.
- A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.
- Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.
- On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.
- In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.
I instruct myself accordingly.
Tue, 2016-03-29 19:13
#821
You can't define "reasonable doubt" without having some notion of what a "reasonable person" might think.
I think pookie's point may have been that in this example, Horkins was that "reasonable person", and did not need to close his eyes and imagine some other person, and what that hypothetical other person might think.
Anyways, I would be interested in knowing how anyone could think that a given account is true "beyond a reasonable doubt" while also believing that something else might plausibly have happened.
Now we need a working definition for "plausible" :)
As the old saying goes, if you see hoofprints in the dirt, they were probably made by a horse. They probably weren't made by a zebra. They surely weren't made by a unicorn.
So, unicorn is definitely implausible. Zebra isn't impossible, but is it plausible? Assume we're talking about here in Canada, of course -- on the Serengeti, the horse and the zebra reverse roles in the metaphor.
Tue, 2016-03-29 19:16
#822
Kropotkin wrote:
When we are dealing with vulnerable people many of whom have suffered PTSD from the sexual assaults I think we need to get away from "gotcha" adjudicating. As I also mentioned above most European countries do not use our system for trying crimes and instead they use a system where an officer of the court gets to investigate fully. I do not think that the people of Europe are being railroaded into prisons because of the system they use. I think for sexual assault cases we can adopt some of their investigation tools without producing an unjust system.
Are these "officers of the court" in Europe prohibited from asking complainants the kinds of questions that were asked during the Ghomeshi trial(eg. "How much contact did you have with the accused after the alleged assault took place")?
Because, if not, I don't really see that adopting that system is going to address the problems that Canadian progressives and feminists are saying were exemplified in the Ghomeshi trial. Complainants are STILL going to be asked about their post-assault history, and that history can count against their credibiiity in tallying the final verdict. Sure, it's not being asked in an officially adversarial context, but at the end of the day, the court would still be saying "Sorry, but those explicit e-mails you sent make us disinclined to believe your story. Not guilty."
Tue, 2016-03-29 19:17
#823
dp, delete
Tue, 2016-03-29 19:19
#824
Now we need a working definition for "plausible" :)
As the old saying goes, if you see hoofprints in the dirt, they were probably made by a horse. They probably weren't made by a zebra. They surely weren't made by a unicorn.
So, unicorn is definitely implausible. Zebra isn't impossible, but is it plausible? Assume we're talking about here in Canada, of course -- on the Serengeti, the horse and the zebra reverse roles in the metaphor.
Plausible means possible and then some. Unicorns would be impossible, being as they are nonexistent. A zebra? Possible, but not plausible, depending on the context in which one sees the foot prints.
Unfortunately though, you're right to say that we would need a working definition fo plausible, which is something we don't easily have. Like many other aspects of the legal system (ie. reliance on witness testimony), the premise is that people can be trusted to act as disinterested, "purely rational" agents in pursuit of Truth and Justice. Which we just aren't.
Tue, 2016-03-29 19:20
#825
Complainants are STILL going to be asked about their post-assault history, and that history can count against their credibiiity in tallying the final verdict. Sure, it's not being asked in an officially adversarial context, but at the end of the day, the court would still be saying "Sorry, but those explicit e-mails you sent make us disinclined to believe your story. Not guilty."
That's not what happened here, though. The Crown and the police left the complainants to their own devices - and they ended up not telling the whole story, or else changing the story. That's what led to the "not guilty". The system should and likely could be "tweaked" to actually help complainants navigate an incredibly difficult emotional process.
Tue, 2016-03-29 19:22
#826
I know you said alot of other stuff, and I agree with the general thrust of much of it, but this is not an accurate description of proof beyond a reaosnable doubt, at least, not in Canada. It absolutely does not refer to an abstract "reasonable person", nor does it require that the Crown's theory be the "only plausible" account of what happened.Reasonable doubt is applied on an individual basis by a trier of fact. It is all about what SHE thinks has been proved - not what she thinks someone would think about it.
You can't define "reasonable doubt" without having some notion of what a "reasonable person" might think. That's not a legal issue, that's a conceptual issue. Otherwise there would be no distinction between saying "doubt" and "reasonable doubt". They don't say "proven beyond all but the tinniest doubts". They say 'reasonable' because there's an assumption of difference between a doubt which is reasonable and one which is not reasonable. Therefore you have to assume such a thing as a "reasonable person" if you expect the legal system to rely upon proof beyond "reasonable doubts". So what's a reasonable person? Someone lacking any emotional, cultural, sociological, religious, ethnic, etc etc etc prejudices? Someone who just sees the "cold hard facts"? Such a person is purely imaginary.
Anyways, I would be interested in knowing how anyone could think that a given account is true "beyond a reasonable doubt" while also believing that something else might plausibly have happened. That, to me, is complete nonsense. To be beyond reasonable doubt means that you can see no avenue by which the case alleged by the prosecution might reasonably be false. If there were other plausible accounts, then by definition there would be reasonable doubt. To say "this could have happened some other way" is an expression of doubt. I think that's reflected by the judge's words quoted by Magoo above.
Somehow, despite this apparently high standard, Canadian courts manage to convict 2/3rds of accused persons. So it seems like 'reasonable doubt' is only really adhered to in cases of sexual assault.
Tue, 2016-03-29 19:26
#827
Somehow, despite this apparently high standard, Canadian courts manage to convict 2/3rds of accused persons. So it seems like 'reasonable doubt' is only really adhered to in cases of sexual assault.
I don't follow.
I totally get that if you flip a coin 1000 times, and it lands "heads" 2/3 of the time, you've probably got a "rigged" coin. Because a "fair" coin should land heads approximately half the time, and that approximation should get even better if you flip it even more.
But there's no logical reason to believe that a 2/3 conviction rate is too many -- nor to believe it's too few. There's no similar element of random chance. Indeed, one side is trying very hard for "heads" even as the other is trying very hard for "tails". They're pretty much wrestling over the coin.
Tue, 2016-03-29 19:26
#828
That's not what happened here, though. The Crown and the police left the complainants to their own devices - and they ended up not telling the whole story, or else changing the story. That's what led to the "not guilty". The system should and likely could be "tweaked" to actually help complainants navigate an incredibly difficult emotional process.
Is that not exactly what happened here? Was not the credibility of the witnesses called into question specifically because of their accounts of what happened after the assaults, not their actual accounts of what happened? The issue, I thought, was that it was primarily their reactions to and behaviour after the alleged assaults which was deemed inconsistent, not their accounts of what they actually experienced as assault.
I haven't followed the case too closely so I'm actually asking.
Tue, 2016-03-29 19:32
#829
Somehow, despite this apparently high standard, Canadian courts manage to convict 2/3rds of accused persons. So it seems like 'reasonable doubt' is only really adhered to in cases of sexual assault.I don't follow.
I totally get that if you flip a coin 1000 times, and it lands "heads" 2/3 of the time, you've probably got a "rigged" coin. Because a "fair" coin should land heads approximately half the time, and that approximation should get even better if you flip it even more.
But there's no logical reason to believe that a 2/3 conviction rate is too many -- nor to believe it's too few. There's no similar element of random chance. Indeed, one side is trying very hard for "heads" even as the other is trying very hard for "tails". They're pretty much wrestling over the coin.
Because the presumption of innocence and burden of proof required by "reasonable doubt" are theoretically supposed balance the system in favor of the accused, while in actual practice to be accused of a crime (other than rape) is usually to be convicted of that crime.
Beyond reasonable doubt is an expression of the belief that it is better for a guilty person to walk free than for an innocent to be convicted. But that isn't what we see. In order to see a 2/3 conviction rate as being an acceptable thing one must have tremendous faith in the investigative powers of the police, who incidentally are habitual liars.
Convictions seem easy, except in sexual assault cases. In the U.S most convictions don't even make it to trial. I wonder how Canada compares in that respect.
Tue, 2016-03-29 19:44
#830
Scared to ask..but ..imagining he was found guilty by the courts... what would be the appropriate sentence.?
Tue, 2016-03-29 20:16
#831
Because the presumption of innocence and burden of proof required by "reasonable doubt" are theoretically supposed balance the system in favor of the accused, while in actual practice to be accused of a crime (other than rape) is usually to be convicted of that crime.
I think they're intended to balance the system against the much greater powers and resources of the state (Crown) and against the bias that follows from being accused.
I don't think they're intended to foster some sort of 50% chance of conviction/50% chance of acquittal. There's just no mathematical "perfect" here in the way there is with a coin toss.
But that isn't what we see. In order to see a 2/3 conviction rate as being an acceptable thing one must have tremendous faith in the investigative powers of the police, who incidentally are habitual liars.
No, actually. Not at all. For all I (or you) know, 95% of accused could, in actual fact, be guilty. Or, 40% of them could be. There just aren't "quotas" in this.
Convictions seem easy, except in sexual assault cases.
Sexual assault cases are frequently cases without much, or any, material evidence. You can't really compare conviction rates for sexual assault with conviction rates in cases with forensic evidence or (uninvolved) witness testimony.
Tue, 2016-03-29 22:40
#832
Anyways, I would be interested in knowing how anyone could think that a given account is true "beyond a reasonable doubt" while also believing that something else might plausibly have happened.
My point there is that it actually works the other way. The presumption of innocence is even more powerful than what you describe. The "plausibility" of alternative theories of the case may be helpful, but is rarely definitive.
"Proof beyond a reasonable doubt" is a term of art, unique to the criminal law, extremely difficult to define and has been routinely rejected as having any analog to other kinds of reasoning, including moral, logical and intuitive.
Tue, 2016-03-29 22:49
#833
That's not what happened here, though. The Crown and the police left the complainants to their own devices
Can you expand on what "their own devices" means? Is it fundamentally different from the police, or the Crown, saying #Ibelievevictims? How much #disbeliefofvictims are we prepared to accept?
Wed, 2016-03-30 01:56
#834
http://www.cbc.ca/news/jian-ghomeshi-marie-henein-lawyer-interview-1.351...
Interview with Henein. I have always had a crush on LDC, and still do. So, I declare my bias upfront.
Henein is (and I suspect, intentionally) less angular in this interview. Her hair is just a bit mussed up, no glasses. Perfect softened image for the interview.
I do agree with some of the things she says. For instance,
Mansbridge asked Henein how she feels when women say that she has betrayed them.
"I respect their right to say it. I don't respect their opinion or agree with it," she said.
Henein said she doesn't believe the same things are said about male lawyers and that when men have opposing opinions, one isn't accused of betraying his gender.
"You're viewed as people who disagree," she said. Henein said to characterize her role in such a way that implies she is against women is "a fundamental misconception of what we do in the justice system."
"I mean female judges adjudicate all sorts of cases, including sexual assault cases. They are not traitors to the gender when they acquit and they're not supporters of the gender when they convict. They're doing their job. As am I."
She does say that the crown, generally, is under-resourced, and this should be fixed (though she adds that in "high-profile" cases, like Ghomeshi's, that in fact the crown is "over-resourced").
When asked about the "#ibelievesurvivors" hashtag on twitter, she's quite critical. When it's pointed out that Mulcair, a lawyer, put out a tweet with this hashtag, she's very critical (though in criticizing Mulcair she notably refers to it as "I believe" rather than "I believe survivors", which I feel is significant -- I feel there's a significant difference between "I believe" and "I believe survivors" -- and I feel she was aware of that in how she spoke). Clearly, she's not a supporter of the NDP. Either Liberal or Conservative (no diff really).
While I agree with some of what she says, triple-A personalities like hers just leave me flat. I feel there's deeper problems in the system then she herself is able to imagine. Problems are deeper than simple under-resourcing of the Crown in low-profile cases. Not sure exactly what they are, but I feel the first step is identifying these problems (IE, someone we all know is guilty who gets off scott-free represents underlying problems -- which Henein obviously is incapable of recognizing). After identifying the problem comes working on possible solutions. So, time for me to more thoroughly consider what the problem(s) is(are).
Wed, 2016-03-30 02:27
#835
Complainants are STILL going to be asked about their post-assault history, and that history can count against their credibiiity in tallying the final verdict. Sure, it's not being asked in an officially adversarial context, but at the end of the day, the court would still be saying "Sorry, but those explicit e-mails you sent make us disinclined to believe your story. Not guilty."That's not what happened here, though. The Crown and the police left the complainants to their own devices - and they ended up not telling the whole story, or else changing the story. That's what led to the "not guilty". The system should and likely could be "tweaked" to actually help complainants navigate an incredibly difficult emotional process.
But the reason that the defense lawyers were asking about the woman's post-assault behaviour in the first place was that our courts consider it relevant in making a decision. So, even if the women had been consistent in answering the questions, I'd assume Ghomeshi could still have been acquited if their actions post-assault seemed to belie their claims against him. (Otherwise, why would anyone ask about them)?
My point is that, if post-assault behaviour is considered relevant in France and Germany, adopting their systems won't do anything to remove that allegedly noxious factor from Canadian proceedngs.
Wed, 2016-03-30 06:02
#836
People say the most idiotic things. This thread and post are prime examples.
Interview with Henein. I have always had a crush on LDC, and still do. So, I declare my bias upfront.
Henein is (and I suspect, intentionally) less angular in this interview. Her hair is just a bit mussed up, no glasses. Perfect softened image for the interview.
I do agree with some of the things she says. For instance,
Mansbridge asked Henein how she feels when women say that she has betrayed them.
"I respect their right to say it. I don't respect their opinion or agree with it," she said.
Henein said she doesn't believe the same things are said about male lawyers and that when men have opposing opinions, one isn't accused of betraying his gender.
"You're viewed as people who disagree," she said. Henein said to characterize her role in such a way that implies she is against women is "a fundamental misconception of what we do in the justice system."
"I mean female judges adjudicate all sorts of cases, including sexual assault cases. They are not traitors to the gender when they acquit and they're not supporters of the gender when they convict. They're doing their job. As am I."
She does say that the crown, generally, is under-resourced, and this should be fixed (though she adds that in "high-profile" cases, like Ghomeshi's, that in fact the crown is "over-resourced").
When asked about the "#ibelievesurvivors" hashtag on twitter, she's quite critical. When it's pointed out that Mulcair, a lawyer, put out a tweet with this hashtag, she's very critical (though in criticizing Mulcair she notably refers to it as "I believe" rather than "I believe survivors", which I feel is significant -- I feel there's a significant difference between "I believe" and "I believe survivors" -- and I feel she was aware of that in how she spoke). Clearly, she's not a supporter of the NDP. Either Liberal or Conservative (no diff really).
While I agree with some of what she says, triple-A personalities like hers just leave me flat. I feel there's deeper problems in the system then she herself is able to imagine. Problems are deeper than simple under-resourcing of the Crown in low-profile cases. Not sure exactly what they are, but I feel the first step is identifying these problems (IE, someone we all know is guilty who gets off scott-free represents underlying problems -- which Henein obviously is incapable of recognizing). After identifying the problem comes working on possible solutions. So, time for me to more thoroughly consider what the problem(s) is(are).
Yeah, start with your own misapprehensions.
Wed, 2016-03-30 07:09
#837
That's not what happened here, though. The Crown and the police left the complainants to their own devicesCan you expand on what "their own devices" means?
I think what it means is that when some run out of ridiculous things to say, they dig for more.
Wed, 2016-03-30 07:26
#838
Why don't we have a judicial system where there are nothing but special courts, where the rules are tailored to suit the occasion? One for people who kill police officers, one for child predators, one for sexual assault, one for murder, for terrorism, for white collar crimes, etc? We could phase out the existing, old school courts and reallocate the resources to better suit what the various pitchfork and torch crowds out there would like to see in a judicial system. Not some one size fits all excuse of a justice system where they get away with just about everything, but one where we can really get a handle on the problem people of this society. Or, better yet perhaps, why not have accused persons run a gauntlet of placard waving protesters who are literally frothing for a piece of the culprits in question, and if they make it through to the other side then they're free to go?
Wed, 2016-03-30 08:36
#839
I think that these women were blind sided by evidence that should have been disclosed to the Crown the same way that it would have been disclosed if the women had sued in the civil courts instead of going through the criminal justice system.
But they weren't suing in the civil courts - a criminal trial is very different matter altogether and carries very different consequences for the accused. You may as well say that, if found guilty, Ghomeshi should not have faced jail time and should have only faced a monetary penalty equal to the complainats' losses, "the same way it would have been if they had sued in the civil courts". If you want to use civil rules of evidence, take your matter to civil court.
Requiring the defence to disclose the evidence they possess would, just off the top of my head, violate: the right against self-incrimination, the right to not be compelled to be a witness against yourself, possibly the right against unreasonable search and seizure, and completely up-end the fact that the burden is on the Crown to prove their case against the accused.
Wed, 2016-03-30 09:30
#840
People say the most idiotic things. This thread and post are prime examples.
Interview with Henein.
[..]
Yeah, start with your own misapprehensions.
Good lord Slumberjack, what's with the sniping crankiness? My post was declaratively contemplative complete with disclaimers. IE, feeling rather than fact. Admittedly, 'twas not one of my more careful posts -- hey, it was late -- still, no need to snipe. Also, if you feel the thread is silly, why post here?
Wed, 2016-03-30 09:34
#841
Also, if you feel the thread is silly, why post here?
Why, to balance things out. How am I doing?
Wed, 2016-03-30 09:39
#842
Far be it from me to judge.
Wed, 2016-03-30 10:04
#843
This judge was wrong because he doesn't understand what "normal" behavior is for victims who are targeted by men like Ghomeshi. His entire opinion is based on false premises about how victims behave and what they remember.
The judgment was not based on their actual post-assault behaviour, i.e. the outdated view that the victim didn't behave as expected and therefore there must not have been an assualt in the first place. Stereotypes about post-assault behavour have already been addressed by the law, and it is no longer a defence for the accused to argue that the victim did not immediately go to the police, or did not fight back, etc.
Rather, the judgment was based on the fact that the complainants were not truthful about their post-assault behaviour. Had they been open with the court things might have turned out differently - perhaps an explanation could have been offered, etc. Instead, the court is left wondering: if they didn't tell the full truth about their behaviour after the assault, what else haven't they told the full truth about?
Wed, 2016-03-30 10:38
#844
For instance in a claim of anti-union animus it is only necessary to show that anti-union sentiment exists...A little anti-union bias gets a company convicted of anti-union animus.
But even a little animus still has to be proven. The evidence for it must still hold up under examination presumably. I'm pretty sure it doesn't hinge upon some union rep saying 'they hate us,' and that's that, the finding is that the company hates the union, just on that say so.
Prior to changing our laws about evidence we allowed prior sexual history to be introduced but that law was changed so that it is now inadmissible. I think that change was both necesary and just...
So do I. Without that change it really would be open season on just about anyone.
....however people screamed bloody murder about that rule change using the same arguments that you are still using.
Bullshit with a capital B.
I think that these women were blind sided by evidence that should have been disclosed to the Crown the same way that it would have been disclosed if the women had sued in the civil courts instead of going through the criminal justice system.
Yes, for the next trick they'll compel accused murderers to dilvulge every shred of evidence they have on hand. Bloody gloves, check, ice pick, check, and oh yeah, your stack of love letters.
Isn't there a sequence of events though that is generally followed in criminal cases, that, if your ideas were to be introduced in the situation under discussion, should basically cause the Crown to re-assess it's prospects heading into a trial? A complainant provides a statement of wrongdoing that implicates an accused. This is generally where things begin isn't it? An initial statement and any amendments to the initial statement constitute evidence that must be shared by the crown to the defence. In your scenario, the crown has a statement in hand, a copy must be provided to the defence team, whereupon, the accused has to provide their own evidence that may very well contradict just about everything that was written in the original statement. Prior to going to trial, the complainant is then left with the option of altering their statement as a work around of the evidence dilvulged by the defence, or, they can go in as they are. Amendments to the statement to conform with the new evidence may be countered with even more evidence from an accused, and so on, simply as a result of newer material becoming relevant in accordance with the revised statement. Either way, at this point you should still be able to catch wind of the difficulty here for the Crown.
When we are dealing with vulnerable people many of whom have suffered PTSD from the sexual assaults I think we need to get away from "gotcha" adjudicating.
But isn't that what a trial ultimately turns on. "We" got you for doing 'this,' or not, as the evidence plays out. Also, regarding PTSD, the court is not in any position before or during a sexual assault trial, until a finding is made beyond a reasonable doubt that a sexual assault has occurred. The court is unable recognize that a complainant is suffering from PTSD as a result of having been sexually assaulted by the accused, who to this point, is only an accused person and not a guilty person. If the court were to recognize that the complainant has PTSD as a result of having been sexually assaulted by the accused on trial, before an actual verdict has been rendered, then we're obviously discussing a case from some bizarro world. What about witnesses to a murder where an accused is on trial? They're likely traumatized too by what they saw. Gotcha adjudicating shouldn't apply here either?
I do not think that the people of Europe are being railroaded into prisons because of the system they use. I think for sexual assault cases we can adopt some of their investigation tools without producing an unjust system.
Please provide an outline of the investigative tools that could have been brought to bear in this particular case? A court order for a defendant to turn over all relevant correspondence with an accuser to the Crown? See above re: difficulty for the crown once a complainant has made an initial statement.
Wed, 2016-03-30 10:44
#845
That's not what happened here, though. The Crown and the police left the complainants to their own devicesCan you expand on what "their own devices" means?
What - again??
I started my detailed explanation on March 24.
Then I elaborated, in reply to your question.
Please review the above and advise if you require any further specific response to your question. Thanks.
Wed, 2016-03-30 10:52
#846
Having an open line of communication to the police and to Crown lawyers, in addition to having one's own counsel for advice for up to a year prior to the trial, hardly constitutes being left to 'one's own devices.' But that is the fallacy being peddled to try and account for the debacle that this trial became. It was the Crown in fact that was left to it's own devices. It's like being stood up at a wedding. You start out the day thinking you're going into it with a reliable partner, only to find out you're really on your own up there at the altar.
Wed, 2016-03-30 11:25
#847
More rich people using Henein's law firm:
Laura Miller, the embattled boss of the B.C. Liberal Party, has reached out to Jian Ghomeshi’s legal dream team to defend her on criminal charges in Ontario.
Miller is charged with breach of trust, mischief and misuse of a computer system in a document-deletion scandal that rocked the Ontario government of ex-Liberal-premier Dalton McGuinty.
Miller stepped down as executive-director of the B.C. Liberal Party when she was charged in December.
But the Liberals announced earlier this month they were re-hiring Miller, saying they believe she is innocent.
http://www.theprovince.com/news/smyth+embattled+liberal+boss+hires+ghome...
Wed, 2016-03-30 12:24
#848
More rich people using Henein's law firm:
Laura Miller, the embattled boss of the B.C. Liberal Party, has reached out to Jian Ghomeshi’s legal dream team to defend her on criminal charges in Ontario.
Miller is charged with breach of trust, mischief and misuse of a computer system in a document-deletion scandal that rocked the Ontario government of ex-Liberal-premier Dalton McGuinty.
Miller stepped down as executive-director of the B.C. Liberal Party when she was charged in December.
But the Liberals announced earlier this month they were re-hiring Miller, saying they believe she is innocent.
http://www.theprovince.com/news/smyth+embattled+liberal+boss+hires+ghome...
I don't really understand the relevance of this, but I can guarantee you that Marie Henien and her firm does pro bono work for indigent clients.
Wed, 2016-03-30 15:15
#849
Jian Ghomeshi lawyer Marie Henein criticizes Tom Mulcair
March 30, 2016
01:56
Marie Henein takes the NDP leader to task for tweeting out #IBelieveSurvivors on the day that her client was acquitted
Wed, 2016-03-30 15:23
#850
Jian Ghomeshi lawyer Marie Henein criticizes Tom Mulcair for #IBelieveSurvivors tweet
Mar 30, 2016
Jian Ghomeshi's lawyer, Marie Henein, has taken Tom Mulcair to task for tweeting #IBelieveSurvivors on the day that her client was acquitted of sexual assault charges, suggesting the NDP leader was just seeking to get votes.
"On a personal level if somebody wants to express their support that's their choice," said Henein, in an exclusive interview with CBC's Peter Mansbridge. "When a politician weighs in, that's a little more concerning to me because you're a person who is engaged and should be more knowledgeable about what you're commenting on."
Henein was asked about the use of the popular hashtag #IBelieveSurvivors that emerged before, during and after the trial. The hashtag was used by many prominent people and politicians, including Mulcair, who once ran a private law practice and taught law at the university level. He posted his tweet, and a statement linked to the tweet, hours before the ruling.
"When you are denigrating the legal system in which he worked and which you should actually be very proud of — we have one of the greatest legal systems in the world — and you do so not having read a word of transcript, and not having informed yourself of the case, that's disappointing and not something I would put much stock in. But it sure does get you a lot of votes doesn't it?" Henein said.
'The problem isn't lawyers doing their jobs'
In response to Henein's comments, Mulcair stood by his earlier remarks.
"The problem isn't lawyers doing their jobs. That's a good thing," he said in a statement. "The issue is that the criminal justice system, as we have seen, has structural problems when it comes to handling cases involving sexual assault.
"During my time working on sexual abuse complaints, one of the biggest obstacles to justice that I saw was women not being believed when they came forward," Mulcair said. "I believe strongly in the presumption of innocence. I believe that you are entitled to a strong defence. But I also believe survivors."
--
Full article:
http://www.cbc.ca/news/politics/jian-ghomeshi-lawyer-marie-henein-tom-mu...
Wed, 2016-03-30 16:35
#851
Henein's comments are totally out of line. What Mulcair said was sensitive and principled.
She ignored the context of his remarks - whether out of negligence or deliberately - or maybe she never got past the "I believe survivors" part. And to accuse him of saying it for "votes"? That's rich.