Why he should have kept his mouth shut!

As criminal defence lawyers, we are acutely aware of the constitutional right to remain silent, and the consequences of not exercising this important right. Even though this right exists, for the most part, in the context of criminal prosecutions, it provides helpful advice to those in the public eye facing allegations of misconduct resulting in the loss of employment and/or reputation. In the course of defending himself against allegations that he went beyond rough consensual sex in his love life, Jian Ghomeshi painted himself in a corner by dismissing the accusations as a “campaign of false allegations pursued by a jilted ex girlfriend”. We disagree strongly with Elissa Freeman’s view, expressed in The National Post on October 27th, that, by early-on putting out his side of story, Jian Ghomeshi has effectively put his attackers, and the CBC, “back on their heels”.

Jian Ghomeshi Had The Right To Remain Silent

It is ever so important to remain silent when faced with any serious allegation of impropriety, whether in the criminal law context or not, especially before all of the facts have come out in the open. As defence lawyers, we are frequently called upon by clients to advise them on whether to speak to the police, or not, in circumstances where they are suspected of or charged with a criminal offence. In the absence of knowing the substance and details of the allegations, we inevitably advise our clients to remain silent. Perhaps, the Jian Ghomeshi affair is a pointed example of why this is sound advice. When Mr. Ghomeshi first responded, it was in relation to allegations by an ex-lover as well as a freelance writer. By doing so, perhaps, he gave other women the courage to come forward (“safety in numbers”) and allege what can only be described as a “pattern of conduct” that is much more difficult to refute by taking the position that the accusations were not credible due to the questionable motives of the accusers, or that his actions were consensual, and should be confined to the privacy of one’s bedroom. As well, there is now the real risk that his publicity blunder could elevate the complaints to the criminal courts. So, to defend oneself without full disclosure of the particulars and extent of the allegations is akin to choosing to do battle with an anonymous opponent. In the present context, I pass on words of wisdom from my grandmother: “once the words leave your mouth, they no longer belong to you”.

Should You Speak To The Police?

At The Criminal Law Team, we have advised hundreds of clients on whether to speak to the police when first arrested, or while being investigated. In only a handful of cases, we have advised the clients to speak to the police. Fortunately, in those cases, the police accepted the clients’ explanations, and didn’t pursue the charges. It is our approach to first try and find out from the police as much detail about the allegations as possible. We then discuss these details with the client, however, on the understanding that we probably don’t have the complete picture, and that time constraints do not allow for an in-depth analysis of the case. Finally, we tell our clients that, if there is any truth to the allegations, they should unequivocally remain silent, and not attempt to “explain them away”. As many clients will deny their guilt at this stage, we make it clear to the clients that, if it is later determined that they have committed the act in question, their “explanation” to the police (whether it’s an alibi, claim of self-defence, etc.) may very well be proven to be false. As experienced criminal defence lawyers, we know that there is no more powerful tool for the prosecution than a denial to the police, the details which are proven to be false.

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Jian Ghomeshi Scandal

Jian Ghomeshi Made A Serious Blunder

So, Mr. Ghomeshi, you made a serious blunder if your lawyers warned you to not make a statement, especially if there was any chance that other “victims” would come forward and allege a pattern of conduct of assaultive non-consensual behaviour. Surely, you must have been awakened to this possibility? Perhaps, you should have also consulted a criminal defence lawyer, who would have told you that, even if the acts were consensual, the consent would be vitiated if they resulted in bodily harm to their victims; that consent for “rough sex” has to be obtained in advance, and that “rough sex” has its limits.

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