Sunday, November 9, 2014

Why Jian Ghomeshi's Prosecution May be a Wrongful Conviction in the Making ?

     As the authorities investigate and deliberate on whether or not to charge Jian Gomeshi under the Criminal Code they ought to take a serious read of the Executive Summary and Recommendations of The Commission on Proceedings Involving Guy Paul Morin.  Readers will recall that Guy Paul Morin was charged with the murder of his next door neighbor, Christine Jessop.  He was tried not once but twice.  Mr. Morin was acquitted at his first trial in 1986.  A new trial was ordered by the Court of Appeal for Ontario(affirmed by the Supreme Court of Canada).  Mr. Morin was tried a second time and found guilty of first degree murder.  Mr. Morin appealed and on the basis of fresh evidence tendered by the Crown and defence he was acquitted of the charge on January 23rd, 1995.  DNA evidence established that Mr. Morin was not the donor of semen stains found on the deceased's body.  The authorities acknowledged that Mr. Morin was innocent, apologized and compensated him.

     As a result of Mr. Morin's wrongful conviction we in Ontario were the beneficiaries of the Hon. Fred Kaufman's insightful report to the Government of Ontario into, among other things, the conduct of the criminal investigation in Mr. Morin's case.  Two investigative flaws identified in the Morin Inquiry and other similar inquiries as significant contributors to wrongful convictions,  "Tunnel Vision" and "Noble Cause Corruption",  may likely present a challenge to the authorities in any prosecution of Mr. Ghomeshi.

     Tunnel Vision was defined by the Morin Iquiry as "the single minded overly  narrow focus on an investigation or prosecutorial theory as to unreasonably colour the evaluation of information received and one's conduct in response to the information."

     Noble Cause Corruption refers to the practice where police officers violate legal or ethical standards in pursuit of what they perceive to be the benefit of society at large.

Tunnel Vision:

     The Jian Ghomeshi allegations are a perfect case-study for the phenomenon of tunnel vision in a criminal investigation - dated complaints of sexual and violent crimes against women by a man who can be described as a public figure or celebrity in an era of political-correctness where there exists "mainstream guilt" for historical wrongs perpetrated against women under the colour of law.  The complainants all know the subject of the criminal investigation.  The subject of the investigation knows the complainants.  They key issue is one of  consent at the time of the alleged conduct  -except for acts which the complainant can not at law consent to(bodily harm for example).  The complainants allege a lack of consent.  Mr. Ghomeshi, as I understand it, has publicly asserted that he acted with consent.

Consent a state of mind:

     A key question for investigators in a case such as this is an explanation for the delay in advancing the criminal complaint.  Delay on its own will not always impair the credibility or reliability of a complaint but it must be carefully investigated.  The rationale for this can be found once one appreciates that consent is a state of mind at the time of the offence which unlike DNA evidence
is not fixed and is subject to change by the complainant either intentionally or unintentionally.

Objective and Subjective

     A complainant can objectively consent to an act thereby inviting an action only to then later
assert a lack of consent depending on their objective.  I raised this legal point in Webb   v.  Waterloo Region Police Services Board et al 2002 Canli 41983 (Ont. C.A.) - a case in which the defendant, a gay man, was cruising in an area known for consensual cruising activity between men encountered an undercover police officer who accepted an invitation to go into the woods with the plaintiff only to arrest and charge him for sexual assault when contact occurred. My use of the word objective above is not to imply that I have any knowledge that the complainants in the Ghomeshi case actually possess any improper objective as I do not know that.  I use it because in the Webb case I was successful in obtaining an admission from the officer that he concealed his identity from Mr. Webb and accepted his invitation to go into the woods knowing what goes on there because he was playing a role and Webb would not have committed the offence had he known.

     Publicity with respect to legal proceedings involving the alleged perpetrator may be a key element which may lead a complainant to effectively reevaluate their consent to a dated occurrence. What may have been consensual because the complainant accepted the conduct at the time can be subsequently deemed "inappropriate conduct" following widespread publicity of sexual misconduct or criminal allegations against the alleged perpetrator.  A complainant may reason that on receipt of the "new information" from the publicity they now feel naive and violated where they did not at the material time. The publicity may provide a new perspective for the complainant to evaluate the historical conduct which she may have consented to in the past and bring forward her "true opinion" on the question.

Nobel Cause Corruption:

     The current waive of political-correctness fueled by the the intense public coverage in this case make it susceptible to Noble Cause Corruption.  Political-correctness on the issues of sexual harassment and sexual assault by men against women has reached a point where,
if left unchecked, the issues of consent, credibility and reliability are secondary to the allegation itself.  The so called victim's narrative and the acceptance of this narrative holus bolus appears on the verge of creating a strict liability offence and dispensing with established legal principles like the presumption of innocence.  This is the climate in which these allegations are received.

     No one - especially the police, prosecutors and even the judiciary - want to be called
out as "condoning" the allegations and "impeding" the victim's right to "vindication".  Vindication under this regime of political-correctness is a finding of guilt.  Reports are already being attributed to at least one of the complainants on the "positive reception" she has received from the police.  Police for their part have already announced that they want to make available all of the resources available - such as counselling etc. to persons who come forward.  In light of these reports one wonders to what extent investigators may be reluctant to ask hard questions of the complainants.  What may often happen in such circumstances is the phenomenon where police adopt the "tell your story to the judge approach". In employing this approach police officers simply take the information at face value and leave the unanswered questions to either the prosecutor or the trial judge.

Challenge for investigators:

     Investigators tasked with investigating a case like Mr. Ghomeshi's must start with a recognition
of the nature and potential frailties associated with the legal concept of consent. Unless there is evidence of bodily harm consent would be a defence to the subject allegations.  Police must be objective, impartial and thorough in their investigations.  Police must not be afraid to ask the hard and perhaps embarrassing questions.  Police are not legally obligated to lay criminal charges at the whim or direction of anyone.  Police may lay a criminal charge where they have formulated reasonable grounds for believing that an offence has been committed.  Political-correctness and publicity ought to have no role in  the execution of this police function.  The forum for victims to seek vindication is the civil forum and not the criminal law forum.

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