Well, hello there, Canada. Happy Tuesday.
Brace yourself. Next year, Jian Ghomeshi could be a free man, absolved of all criminal charges and a multimillionaire, thanks to a hefty settlement from his former employer, the CBC. Here's how that scenario plays out:
The legal case against Ghomeshi, the once-popular host of Q, is problematic, as a lengthy story in the Globe and Mail points out. For starters, the charges stem back to incidents in 2002 and 2003. That's not the end of the world but it does make the case more challenging for the Crown. Same for the fact that two of the complainants aired their grievances to the media before going to the police.
The real legal technicality lies in what's called a "similar fact" argument. The Crown will assert that because the complainants are all telling similar versions of the same story, that implies a pattern of behaviour, bolstering the validity of each individual complaint. Ghomeshi's lawyers, however, will reply that the testimony of each woman has been contaminated by the extensive reporting of the allegations. Combine that with the charges being more than a decade old and the defense will attempt to discredit Ghomeshi's accusers by saying they aren't recounting what happened to them but what they read and heard in the news happened when women went out on dates with him. The onus lies with the defence to make that argument stick.
The key for the Crown, legal experts told the Globe, will be to present compelling evidence against Ghomeshi that hasn't already been reported.
The Globe story concludes with a 2002 Supreme Court case that could set a precedent in Ghomeshi's case if the judge decides to judge each charge on its own merit, rather than on "similar fact." In the 2002 case, which also involved non-consensual violent sex, the top court ruled that evidence of previous violent sexual behaviour by the accused that he wasn't charged with could not be used to bolster the evidence against the man for the charges he was facing. In other words, the Crown has to do more than establish the defendant is a bad person. It has to demonstrate, beyond reasonable doubt, that the person broke the law in relation to the specific charges he is facing.
The extensive media coverage continues, with CBC's The Fifth Estate weighing in last Friday, with its hour-long feature, The Unmaking of Jian Ghomeshi. There and elsewhere, he has been depicted as a driven egomaniac obsessed with his personal image, who was difficult to work with and often abusive, thanks to interviews with his former CBC colleagues. There seems little doubt Ghomeshi is not a nice guy, contrary to the public image he carefully constructed, but that's hardly enough to convict someone of criminal charges.
If the judge either throws the case out or hears the case but then finds Ghomeshi not guilty of all charges, the problem lands right back in the CBC's lap. Ghomeshi dropped his lawsuit but his grievance filed through his union, in which he seeks reinstatement, remains.
As the Fifth Estate documentary shows, CBC management mishandled the Ghomeshi case from beginning to end. The CBC will argue that he can't be reinstated because returning him would be disruptive and toxic to the workplace. An arbitrator could side with Ghomeshi but also agree with the CBC that he can't go back to work at his old employer.
At that point, the CBC and Ghomeshi, through their lawyers, would start arguing what how much the CBC is willing to pay Ghomeshi NOT to come back to work. Naturally, there is extensive legal precedent for that, too, and Ghomeshi's payout would be calculated based on his future earnings (significant), his ability to find future employment at the same pay (unlikely) and other factors.
If that happens, not a stitch of it will be made public. Although the CBC is a public-sector institution funded by tax dollars, workplace privacy rules will trump demands to know how much his buyout is worth. Furthermore, all settlements reached out of court come with a confidentiality clause attached. Neither Ghomeshi nor the CBC will be able to provide any details except that a deal was reached. Violating that confidentiality could cost Ghomeshi parts or all of his settlement or it could cost the CBC even more money in damages, depending on who would blab.
As Ghomeshi himself would say at the end of each show - "to be continued."
