Trial before Trial and Other Matters of Media Madness

So here it is, folks, barely a week or so into the Jian affair, and the knives, some blunt and others very pointed, have come out in full force.

In Jian Ghomeshi, we have a very high-profile and well-loved entertainment personality whose personal life has been put on display and who, for all intents and purposes has been convicted in the public`s mind of a variety of nasty crimes and misdemeanors including domestic and sexual assault — all this for a guy who, at this point, has been charged with nada.

Let`s just have a look at what has taken place to date and what this controversy has provoked.

CBC Gives Jian Ghomeshi The Axe

To begin with, we see our public broadcaster firing Jian on the strength of the materials (including apparently graphic video footage) provided by him as a pre-emptive strike in anticipation of some of his alleged victims going public. One might wonder about the value of the advice given to Jian Ghomeshi at the time or in fact, whether he paid any attention to this advice before speaking with the executives of his employer. We should all keep in mind that the content of this video material has not been revealed in any detailed way, but unfortunately, the perverse nature of the events depicted has been broadly hinted at.

Whether it was the wisest move on Jian`s part to do a show and tell with his bosses is certainly debatable but for the CBC to give him the axe and go public about criminal wrong-doing in violation of an apparent agreement of confidentiality is another.

The Difference Between Civil and Criminal Proceedings

Of course, as criminal defense lawyers, we totally get that there is a huge difference between civil and criminal proceedings and that the standard of proof in these two legal arenas is vastly different. For civil matters, the standard is the balance of probabilities, ie., who and what do you believe while in criminal matters, the standard is beyond a reasonable doubt. Something close to moral certainty is required before a conviction can be arrived at, either by a judge or a jury.

jian ghomeshi cbc

The difference between these two standards, in our minds, suggests that before an employer acts on information that suggests both these worlds are engaged, he, she or it should take very determined and cautious steps to further investigate before giving an employee the chop – particularly when no individual has come forward to complain, either through a public announcement or by the lodging of a formal complaint with police authorities. In any case, the CBC was in a difficult position once Jian gave substance to some of the allegations he expected to come out.

While, of course, we understand the immense difficulty that women experience in going public in any case where sexual misconduct is involved, the firing and accompanying press releases by the public broadcaster effectively served as an advertising for victims in circumstances which, at this point, may or may not even wind up in any criminal charges being laid or result in convictions being obtained in a criminal court of law.

 Many Legitimate Issues Are Subject To Cross-Examination

Once again, from our criminal law perspective, these cases alleging sexual assault and other criminal violations in a domestic or boyfriend/girlfriend relationship, generally speaking are subject to cross-examination exploring many legitimate issues, not the least of which is the motive to lie. In addition, the reasons for the delay in any alleged victim coming forward is also fair ball in the context of a criminal trial, not to mention the vital question of consent in the context of the overall activity engaged in.

Jian’s Celebrity Status Plays A Big Role

When we consider the celebrity status and life style of a man such as Jian Ghomeshi, these motives and others loom large and naturally, experienced counsel, has to explore these issues in depth. If these victims have already gone public through the magic of print, radio, tv and social media (ala Facebook, Twitter, etc.) the task of selecting an impartial jury becomes a nightmare. To find twelve people who have not been exposed to a constant barrage of negative publicity, a trial would have to take place on Mars. Frankly, our judicial system could not afford the travel expense.

And while the motivation of some well-respected criminal defense counsel who publicly offered to provide free assistance to women (and potentially men) who might feel they were victimized at some point by Jian cannot be questioned, one can only wonder whether such an appeal might unintentionally encourage people to come forward with complaints of sexual assault or domestic assault in circumstances that are highly questionable. The concern here is that complaints which might otherwise appear shaky to all the world including an investigating police officer, could suddenly seem credible because of the sheer number of allegations being publicly aired – a phenomena sometimes referred to as “piling on” in the rough and tumble world of professional hockey.

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And as criminal defense lawyers and of course, members of the public (was there ever any doubt?) we can`t help being concerned about the possibility of wrongful convictions and the specter of people wrongfully accused having to go through the horror show of protracted legal proceedings and a trial for crimes they did not commit, whether or not they have the resources and the name of the currently fallen media idol, Jian Ghomeshi.

(Photo credits:  The Globe and Mail)

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