Both Ghomeshi & prosecutors win: lawyers

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One of the most high-profile sexual assault cases in recent Canadian history came to a quiet close in Toronto Wednesday, as the Crown and Jian Ghomeshi’s defence team negotiated a deal that several legal experts called a victory for both sides. Those negotiations saw the 48-year-old former  host apologize to Kathryn Borel — the complainant in Ghomeshi’s second sexual case and a former associate producer at — and sign a peace bond that included a promise to refrain from any contact with the woman.

In return, Crown attorney Michael Callaghan withdrew the charge that had been set for trial on June 6 in provincial court.

The resolution means Ghomeshi can avoid the expense and publicity of another trial — while the Crown receives public, if not legal, recognition that the accused took some responsibility for his actions, Toronto defence lawyer Ari Goldkind said.

“Given the unusual circus atmosphere of the Jian Ghomeshi case, this could be viewed as a bit of a win for each party,” Goldkind said. “For the defence, any time you can save a client from the unpredictability and uncertainty of a trial on a serious charge … that’s a significant victory.”

And while an apology may not be “an admission of guilt in the typical legal sense,” Goldkind said that it should pacify both the complainant and the general public, “which will then be reflected as a victory for the Crown.”

In his address to the court, Callaghan underscored that theme of satisfying the public sense of justice.

“By apologizing for his actions, Mr. Ghomeshi publicly accepts responsibility for them,” Callaghan told the court. “Public acknowledgement of the harm done to Ms. Borel is a valuable consequence of this resolution; not only from the perspective of the complainant but, also, from the perspective of the public.”

The resolution could also signal that Callaghan did not feel he could win based on the evidence, something that legal experts said they expected he would thoroughly review after Ghomeshi was acquitted of four counts of sexual assault and one count of choking related to three other complainants by Judge William Horkins of the Ontario Court of Justice on March 24.

In that decision, Horkins issued a scathing reproach to the three complainants saying they lied and deliberately withheld information from the police and the court.

Therapy, rehabilitation

If the second sexual assault charge had gone to trial and Ghomeshi were convicted, it’s unlikely he would have faced jail time.

Whenever someone is convicted of a crime, the judge considers the level of remorse or attempts at rehabilitation, Toronto criminal lawyer Russell Silverstein.

That’s something Ghomeshi has shown to the court in his apology and through seeking therapy for 18 months, Silverstein said, the latter of which was submitted as evidence to the court Wednesday.

“He has demonstrated to the world that he appreciates now that what he did was wrong, at least in the context of his employment at CBC.  He’s demonstrated that he admits he has a psychological issue that needs dealing with and that he is dealing with it.”

The veteran criminal lawyer said that’s why the deal would have been palatable to the Crown — because it addresses the same things that a sentence would, but can do so without taking up the court’s resources or putting Borel through the stress of testifying.

Borel agreed to withdrawal

Callaghan told the judge he had talked with Borel about withdrawing the charge after Ghomeshi committed to an apology, although it did not address her allegations directly. She alleges Ghomeshi made grabbed her hips when she bent over to pick up some papers at work and then began grinding against her buttocks, pretending to have sex with her from behind.

“A trial would have maintained his lie, the lie that he was not guilty and it would have further subjected me to the very same pattern of abuse that I am currently trying to stop,” Borel told reporters on the steps of the courthouse. “[This resolution] seemed like the clearest path to the truth.”

It is not, however, either a conviction or a confession, although Silverstein said it appears that’s what the complainant has chosen to take from this.

“If it makes her feel better to see this apology as a direct apology for the criminal behaviour that she alleges, then I suppose that’s what she’ll do.”

For Ghomeshi, it’s a chance to move forward after 18 months of “unrelenting public scrutiny,” his lawyer told the court.

That would have been a logical choice for Ghomeshi, defence lawyer John Rosen said, given the expense of ongoing litigation — although he said it was likely an acknowledgement that the prosecution did not have a strong case.

“Always remember that principle costs principal — and that’s really what’s going on,” he said. “This puts an end to the bleeding.”

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