Toronto: The Ghomeshi Trial

a reply to: InTheLight

Here's the apology:

www.thestar.com...

Ghomeshi read the apology in court as former Q producer Kathryn Borel looked on.

“I want to apologize to Ms. Borel for my behaviour towards her in the workplace," Ghomeshi said. “In the last 18 months, I have spent a great deal of time reflecting on this incident and the difficulties I caused Ms. Borel, and I have had to come to terms with my own deep regret and embarrassment.”

Just before Ghomeshi spoke, the court heard that Borel and Ghomeshi were working late at the office one night in 2008 when he pressed his pelvis repeatedly against her buttocks.

a reply to: ipsedixit

So, he reflected on his behaviour and was regretful and embarassed - growing up can be difficult.

a reply to: InTheLight

That is so true. Like many of the public, I believe the accusations that were made against Mr. Ghomeshi. I think he started getting out of hand and unfortunately nobody that I know of interceded on behalf of the CBC to protect its asset and collaterally, the asset's victims.

There is not a lot of satisfaction that comes out of this case.

a reply to: ipsedixit

I predict now that it is over and all is right with the world, that he will get job offers from the industry (male-dominated, still), and this time, if he did not learn a lesson, all his dry humping at work will take place without witnessses. He really needs to join an S&M club and stop springing these urges on unsuspecting women.

a reply to: InTheLight

He's a hard one to figure. The perennial frat boy.

a reply to: ipsedixit

In essence, a man-child. Or is it kidult?

Katheryn Borel's statement to the press, following this morning's court session:



This is something of a bombshell. I want to go over it in detail, but it indicates that she endured alleged abuse from Jian Ghomeshi for three years and only came forward in the wake of revelations from other people and after the police told her that what she was experiencing was sexual assault.

She also said that she had complained to CBC management about Mr. Ghomeshi's behavior and that they had told her that what he was doing was something that she just had to put up with.

I think it is disconcerting to compare her statement, above, with comments she made in a December 9, 2013 blog post, put up by her friend Jesse Brown, describing her working environment at the CBC.



This goes to the context within which alleged abuses are supposed to have taken place. The context seems to have been pretty raunchy and Ms. Borel seems to accept a characterization of herself as being sexual in the workplace and the sort of gal who might tell a "fist f**k" joke.

For me the question is why didn't Ms. Henein take this case to trial? Also, why did Kathry Borel get the idea into her head that maybe Ghomeshi's behavior was her fault? Do we really know the answer to that last question? Is there more to that than victimological rationalization?

In the blog post referred to above,

canadalandshow.com...

Jesse Brown and Kathryn Borel reminisce about how they met, on Jesse's first day on the job at the CBC.

00:04:30

Jesse Brown: . . . and so when I met you there, you rapped.

Kathryn Borel: Oh right. I mean . . .

JB: Like on my first day at work you should have followed me down the hall . . .

KB: I followed you down the hall rapping Young MC's Bust A Move because you were the only other person who was like, around my age and didn't seem like a total square . . .

JB: Yeah.

KB: . . . and for some reason like, my misguided attempt to make you my friend was like, 'I'll just follow him down this hall while rapping Young MC's Bust A Move and maybe he'll be interested in becoming my friend.

JB: It was guided.

KB: I guess it was guided. I mean it worked.

JB: Yeah.

KB: You're here now, ten years later.

It helps to set the scene if one knows what Katheryn Borel was "rapping" as she followed the new CBC employee, Jesse Brown, a stranger, down the hall that day.



Here's a quote from the song:

A girl runs up with something to prove, so don't just stand there, bust a move

It's a comical thing, being done to somebody new by a girl, Katheryn Borel, interested in comedy and in making friends, and it has a sexy overtone. I don't think it is unfair to say that.

Later in the interview she characterizes herself at the time she met Mr. Brown.

KB: (11:44) When I met you I had a salary and a dental plan and like, I was getting my head shrunk every week, and I was covered and that was really nice and all that sort of thing.

If there had been a trial in this case would the psychiatric evaluation of the complainant, Ms. Borel, have been relevant at all in assessing the validity of her interpretation of Mr. Ghomeshi's relationship with her?

Without knowing the details it is impossible to say.

Getting to the subject of her time at the CBC radio program, Q, Mr. Brown names Mr. Ghomeshi.

JB: (14:09) So, with Q . . . and we won't talk about Jian because you don't want to talk about Jian right. We're not talking about Jian?

KB: No, uh, ah, there's nothing to say about Jian, at this particular juncture.

JB: OK.

Clearly, there was something to say about Jian, just not at the time of this blogcast. This assures me that Jian was an issue for her, in 2010, after she had left Q, still.

She's a writer. It seems to me that she might well have been saving the Jian stuff for an appropriate forum. What could that forum have been? A tell all memoir of "my time at the CBC"? A court case?

We don't know.

I want to look at other things in this interview. In her statement to the press this morning, Ms. Borel took what is sometimes referred to as a "Parthian shot" (*) at Mr. Ghomeshi.

She told us all about what he is alleged to have done to her, over a period of three years, none of which she sought legal redress for, until others came forward and until the police told her that she had been sexually assaulted.

Mr. Ghomeshi has apologized in a rather perfunctory manner, for questionable behavior. He has agreed to a peace bond, i.e., to stay away from Ms. Borel.

Did Mr. Ghomeshi actually admit to the behavior alleged, by Ms. Borel, to have occurred?

I don't know.

It certainly appears that Ms. Borel, with her statement, has handed the press a verdict in a trial that never took place. I find that troubling.

It certainly continues the trend in this case of trial by press.

*Note: Parthians, escaping the battlefield, would turn in the saddle and shoot to the rear at the enemies they were fleeing.

The full text of Jian Ghomeshi's apology (which was not perfunctory as stated earlier) to Kathryn Borel is at the following link:

www.thestar.com...

“I now recognize that I crossed boundaries inappropriately. A workplace should not have any sexualized tone. I failed to understand how my words and actions would put a coworker who was younger than me, and in a junior position to mine, in an uncomfortable place. I did not appreciate the damage I caused, and I recognize that no workplace friendship or creative environment excuses this sort of behaviour, especially where there is a power imbalance as there was with Ms. Borel. This incident was thoughtless and I was insensitive to her perspective and how demeaning my conduct was towards her. I understand this now. This is a challenging business to be in and I did not need to make it more difficult for Ms. Borel. The past 18 months have been an education for me. I have reflected deeply and have been working hard to address the attitudes that led me, at the time, to think that this was acceptable.

Mr. Ghomeshi says that "a workplace should not have any sexualized tone". That's amusing. I wonder if Kathryn Borel agrees with that. There isn't an environment that contains human beings anywhere that does not have a sexualized tone. It's just a question of degree. No workplace should be an environment where abusive behavior of any kind goes on, but even that is rare.

I think Mr. Ghomeshi's apology is adequate. It is certainly more fulsome than Johnny Depp's famous deadpan zombified mea culpa to the Australians. I think he means it.

a reply to: ipsedixit

I hope he means it, but what about apologizing to the other 20 (+?) women?

a reply to: InTheLight

He should have included them in his apology. Perhaps he could have said,. . . "and of course to the innumerable others I have also defiled in some similar way." Johnny Depp would know how to handle it.

a reply to: ipsedixit

Well, he went through 18 months of psychological therapy, so that is a big step.

ca.news.yahoo.com...

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."

Now, how to fix the ineptitude of the courts.

"There is a huge amount of training being done with police, with crowns and with judges regarding the neurobiology with trauma,” she said. “When people experience trauma the brain is keeping people alive and that means that ‘flight, fight (or) freeze’ (mentality) kicks in. Freeze is the most common response and from that, police have to understand what freeze looks like.”

www.nugget.ca...

a reply to: InTheLight

I think with the courts the worst thing is the lack of consultation that goes on between complainant and Crown Prosecutor. (One of the lawyers representing one of the complainants referred to having almost no contact with the Crown prior to the trial.) In the trial that was a trial it was painfully obvious that the Crown and the complainants were singing out of different hymn books. That sort of thing is absurd and to think that it is the norm beggars belief.

The Crown, in theory, represents the law and society, and not the complainants in a case. That might be fine for cases initiated by the police in the normal way, but in this sort of case, it seems absurd. It begs the question, "How much consultation goes on between Crown and Police in a standard case?" I suspect more than happened between these complainants and the Crown.

a reply to: ipsedixit

It is something that needs to be put under a microscope.

By the way ip, I want you to know that I appreciate your open-minded deduction approach throughout this discussion. It is indeed a wonderful quality that you share.

a reply to: InTheLight

You're very sweet, thank you.

I'm going to go back to the podcast I referred to above for further observations and remarks. It is interesting to listen to these young people as they sum things up for themselves. It is something of a blast from the past for me, because at one time in my life, I was as serious about writing as Kathryn Borel herself. I'm much more serious than that now.

She and her friends strike me as being past the stage of being the central character in your own novel. A lot of sensitive, artistic young people go through that stage of acute and earnest self awareness and self adulation.

At this point in her life Katheryn Borel strikes me as being all about business. She's doing what she wants to do and just wants to get down to it. Good for her.

She has classified people as primary, secondary and tertiary figures in art and the business of art as it relates to the field of broadcast media that she was involved in. She considered herself a tertiary figure, a radio producer who tracks down and books artists, primary people, to be interviewed by her "boss", Jian Ghomeshi, who operated as a secondary person in the business, interfacing directly with the primary people.

Her ambition was to become a primary person. I gather that she felt that she was not being given enough credit in her job.

Ironically, the beast, Jian Ghomeshi, promoted her, on his program, Q, as a primary person, an artist, the author of a new book, Corked, a memoir of her father and his love and understanding of wine.

Sinister and evil in everything he did, Jian Ghomeshi actually had the gall to call her a coveted producer at the CBC. Of course the public would not realize that a double entendre was being communicated by that. Only Kathryn Borel realized that. She grinned and giggled like a little girl when he made the remark. That's how traumatizing it was for her.

As far as the public was concerned, Ghomeshi was singling her out of the pack and nudging her toward stardom, just a little, just enough to be noticed by his fans, just enough so that they might mark that name, Kathryn Borel. What a bastard he was.

When I watched the interview, I had the impression of "great guy" Jian Ghomeshi helping out cute little newbie, Kathryn Borel. It just shows you how dumb I am.

Here's the interview. Watch the monster at work.

The remarks, at the following link are interesting. They come mainly from Kathryn Borel's friend, Jesse Brown, who tells the reader that the idea for the apology deal originated with Marie Henein after an offer of money to be paid by Ghomeshi to Borel, was refused by Ms. Borel.

Mr. Brown is a close friend of Ms. Borel, the presumed source for this information.

That is interesting.

It still doesn't explain why Ms. Borel was willing to make a deal, at all.

Christie Blatchford, Mr. Brown's correspondent, was asking him if credibility concerns played any part in Kathryn Borel's decision to accept an apology in this case, something Mr. Brown rejects. You can read the exchange at the following link:

canadalandshow.com...

Fist F**k jokes are not something I have heard a lot of. The only thing of that sort that I can remember was the caption under a particularly riveting pornographic photo that made reference to missing car keys.

National Post reporter, Christie Blatchford, was wondering if credibility issues were a factor in Kathryn Borel's decision to accept an apology rather than pursue a conviction for sexual assault against Jian Ghomeshi.

canadalandshow.com...

Jesse, I’m guessing (and only guessing) your interview with Borel may have had something to do with the Crown agreeing to withdraw the charge against Ghomeshi tomorrow and him signing a peace bond. It may be that a woman who cheerfully agrees with you that she was “incredibly inappropriate, foul-mouthed and sexual” in the workplace may be vulnerable to cross-examination.

You have anything to say about this?

I think the most important part of Jesse Brown's response to Christie Blatchford is the following:

Are you actually suggesting that a woman who makes dirty jokes at the office and is subsequently sexually assaulted at work has compromised her credibility? Do you not perceive the distinction between making a dirty joke to a group of colleagues and being sexually assaulted by your boss? Are these both just equivalent manifestations of a "sexualized" workplace?

Did she have it coming, Christie?

I think Jesse Brown is being overly simplistic in this. I agree with him, in essence, that it is possible to rape a "lying whore".*

One can't help wondering, though, just how much lying Ms. Borel would have been constrained to do in an actual trial, or, rather, just how much of the truth she was unwilling to disclose, choosing instead, to make a deal when Marie Henein offered one, a second time.

I wonder how much of Jian Ghomeshi's alleged sexual assault and abusive behavior toward Ms. Borel was actually meant comically in the context of the office environment at Q.

(Frank Magazine style editorial note: Leaning against the wall in front of Ms. Borel and slowly unbuttoning two or three shirt buttons is meant to be comical, shurely?)

Why did Kathryn Borel make the deal?

*Note: This refers to a well known legal maxim of the criminal bar, coined by Mr. Justice Heynous Koffee, to the effect that it is impossible to rape a lying whore. Trial lawyers consider this sort of thing witty. Naturally, I deplore it.

Kathryn Borel gave a detailed account of allegedly abusive interactions with Jian Ghomeshi in an article printed in the Manchester Guardian (Tuesday 2 December 2014).

www.theguardian.com...

It starts:

A few months into my job in 2007, I let out a big yawn at a staff meeting and my host told me “I want to hate # you, to wake you up.” I was 27 years old. I made sure never to yawn in front of him again.

My Note: Ms. Borel is what is called a Gen Xer or perhaps a Millenial. She's on the cusp. When she thinks to include her age at this point, 27, older generations of people are to interpret that as "emotionally 17".

Ms. Borel put up with three years of this sort of thing. Her boss, Jian Ghomeshi, was vulgar and thuggish. She never yawned in front of him after that.

(I would have got my revenge by yawning behind his back, but that's me.)

After that, there were the uninvited back massages at my desk to which it was clear I couldn’t say no, during which my host’s hands would slide down just a little too close to the tops of my breasts.

Of course that is crossing the line, as any sort of uninvited, intimate touching is, but I am curious as to how it became clear to Ms. Borel that she couldn't refuse a massage.

Is this what the police informed her was sexual assault?

A year into my time on the job, he grabbed my rear end and claimed he couldn’t control himself because of my skirt.

A similar incident occurred in the life of cartoonist Robert Crumb's brother, when he couldn't control himself at a supermarket checkout because of a pair of tight jeans standing in front of him. He had to yank them down and did and went to jail for it. I gather Mr. Ghomeshi managed, somehow, to get control of the joystick and to pull out of his nose dive in time.

Occasionally my host would stand in the doorway of his office, when no one was around, and slowly undo his shirt by two or three buttons while staring at me, grinning.

I suspected that the aim in this little gambit was comedy. Grinning?

He once grabbed my waist from behind – in front of our fellow colleague, at the office – and proceeded to repeatedly thrust his crotch into my backside.

This seems like ridiculous clowning around, especially considering that there was a witness present. It's the sort of thing people laugh at in the movies.

Of course it is boorish and malicious and prankish. In someone who wasn't having fun too, or not in on the joke, or not at all sympathique to the one doing it, it would be seen as vulgar, rude and annoying.

Is this what the police department convinced Kathryn Borel was "sexual assault"?

If so, I think it is really reaching to do so. There might be a little mischief in such a diagnosis, actually, in my opinion, if it occurred.

There was emotional abuse, too: gaslighting and psychological games that undermined my intelligence, security and sense of self. Sometimes that hit harder than the physical trespassing.

If what Kathryn Borel is saying is true, Mr. Ghomeshi was acting like a creep. He was behaving like a sociopath. If her interpretation of what was going on is accurate.

I'm willing to accept her assessment on this.

There is no doubt that it is abusive behavior, if it went on as described by Ms. Borel.

Is it, the behavior, sexual assault?

There is certainly a strong sexual overtone to what Mr. Ghomeshi was doing on an ongoing basis.

Was it assault?

Some food is occasionally described as having "assaulted" the senses, described figuratively, that is.

Mr. Ghomeshi's behavior, in total, was certainly an "assault" on Ms. Borel's concepts of normal social decorum, if we accept her description of the ongoing scenario as accurate, but was it sexual assault as defined by the law?

This is a technical point. That's Marie Henein's specialty, but here is a rough guide to the terrain.

sieccan.org...

Levels of Sexual Assault
(Summary of Criminal Code of Canada classifications)

Level 1: Any form of sexual activity forced on another person (i.e., sexual activity without consent), or non-consensual bodily contact for a sexual purpose (e.g., kissing, touching, oral sex, vaginal or anal intercourse). Level 1 sexual assault involves minor physical injury or no injury to the victim. Conviction
for a level 1 sexual assault is punishable by up to 10 years in prison.

Level 2: A sexual assault in which the perpetrator uses or threatens to use a weapon, threatens the victim’s friends or family members, causes bodily harm to the victim, or commits the assault with
another person (multiple assailants). Conviction for a level 2 sexual assault is punishable by up to 14 years in prison.

Level 3: (Aggravated sexual assault) A sexual assault that wounds, maims, or disfigures the victim, or endangers the victim’s life. Conviction for a level 3 sexual assault is punishable by up to life in prison.

Clearly, we are dealing with activity that should be measured against the "Level 1" standard. I think it is a close call.

"non-consensual bodily contact for a sexual purpose"

I really think this could be argued. Were unwanted massages that got close to the breasts without touching them sexual enough to merit a Level 1 sexual assault classification? I think it is arguable either way.

Dry humping in front of a witness seems not to be really sexual but rather comic, at best, and demeaning at worst and certainly boorish either way.

I think a lot of birds were being killed with one stone, hardly more than a pebble, in strict legal terms, in the Borel case.



Knowing what I know, from the Jesse Brown interview and from Kathryn Borel's own account of what Ghomeshi allegedly did to her and being aware of the Level 1 criteria for sexual assault, (but not knowing the specifics of case law on this), I think this case should have gone to trial. I think Ghomeshi would have won again.

Having decided not to go to trial, if possible, and to offer a deal instead, and having had the deal accepted, why would Marie Henein not secure as part of the package, an undertaking from Kathryn Borel not to speak about the case after the agreement was signed?

Instead, Ms. Borel emerged, after the agreement was signed, to enumerate to the press, a list of Mr. Ghomeshi's alleged, but not tried and proven in court, offenses, as if it had been accepted by the court that these offenses had been admitted to by Mr. Ghomeshi.

I have a real difficulty with that. Did Marie Henein let her client down by not dotting that last "i" in the agreement, "I will henceforth be silent on this subject."?

Not knowing every detail about why the deal was made and what was possible in such a deal, I am left wondering.

I should have been aware of the Crown's statement on the 810 recognizance order. It indicates which of Mr. Ghomeshi's behaviors was deemed to be "sexual assault" .

www.thestar.com...



As I stated in the above post, I don't think this fulfills the requirements for Level 1 sexual assault, but the witness's impression of what was going on could have been decisive in tipping the balance here. I think the activity of Mr. Ghomeshi would have to have been clearly masturbatory in nature to construe this kind of contact as definitely sexual rather than comical.

Am I right in believing that the witness to this incident was Ms. Borel's friend Jesse Brown? Collusion comes to mind if the witness were a close friend, particularly since the charge was filed so many years after the incident and only in the wake of a crowd of others making accusations against Mr. Ghomeshi.

Note: The witness was not Mr. Brown, but rather Roberto Veri, who told his story to Mr. Brown for a podcast, according to the Toronto Star.

www.thestar.com...

The witness, Roberto Veri, who had worked at Q, has previously said publicly that he witnessed Ghomeshi’s actions. On Wednesday he told the Star in a brief telephone interview he was going to testify if the case has proceeded to trial.

In November 2014, Veri had told Jesse Brown, in an interview for Brown’s Canadaland podcast, what he saw on February 7, 2008 in the Q studio.

“(Borel) was leaning over her desk between the corridor of the executive producer's office and her desk. So she was leaned over contrary to where she sat. And she's bending over working on some papers. And he came up behind her, grabbed her by the waist and humped her like four or five times. He drove his pelvis into her buttocks and a big smile on his face. So I looked over at that and I just sort of put my head down again,” Veri said in his interview. He has expressed remorse that he did nothing at the time.

I apologize for not being on top of the Crown's recognizance statement, but my arguments about the allegations in the previous post still stand, I think. I don't think Ghomeshi's purpose was sexual, in doing what he did, at least not on a physical level.

I think it is absurd to believe that Mr. Ghomeshi would have been masturbating in that situation. Did he know he was being observed by a witness? This just seems like a beatable charge to me, but obviously Ghomeshi and his attorney judged it advisable to kick a field goal in this situation, rather than go for the touchdown.

It needs to be stressed that Mr. Ghomeshi has not admitted to doing what he was charged with doing and that the charge was never tested in court. It is not a proven allegation. Despite the presence of a witness, I think this charge might have been beaten, by being shown not to have met the standard of Level 1 sexual assault.

The article in the Star referencing the witness, Mr. Veri is worth reading for what Ms. Borel says about Mr. Ghomeshi's apology and the wording of it. She was concerned not to be characterized in it as a jocular sort of person whose demeanor invited treatment of the sort she received from Mr. Ghomeshi. She says that she was satisfied with the apology but also that she believes that this story isn't over.

“I think we all want this to be over. But it won’t be until he admits to everything that he’s done,” Borel told about 40 journalists outside of Old City Hall courts.

That sounds a little quixotic to me. Personally, I wish the case had gone to trial, but that is really only by way of an academic interest in how the trial would have played out.

OK. Now I see the reason for the deal.

Any form of sexual activity forced on another person is Level 1 sexual assault.

According to this video, "dry humping" is sexual activity.

Warning: sexually specific, but not explicit, content.



Marie Henein might have decided that asking a court to distinguish between "real" dry humping and "simulated" dry humping (Frank-style editorial note: as in dance moves or talk show host moves, shurley.) would be a non starter.