Judging Jian Ghomeshi

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Assuming that the criminal suit against Jian Ghomeshi goes to trial, Marie Henein’s case will be severely disadvantaged by the prior press coverage regarding Ghomeshi’s behaviour. Numerous women have spoken out against Ghomeshi along with one man, all claiming to have been sexually assaulted in similar ways.

Even if Marie Henein succeeds at excluding most of the similar fact evidence, it might not make a major difference. Undoubtedly the judge will have already heard of the corroborating allegations against Ghomeshi through the press. There will consequently already be an unconscious bias towards convicting Ghomeshi.

In R v Handy (2002), the leading case regarding the admissibility of similar fact evidence, Justice Ian Binnie writes for the Court:

40           The policy of the law recognizes the difficulty of containing the effects of such information which, once dropped like poison in the juror’s ear, “swift as quicksilver it courses through the natural gates and alleys of the body”:  Hamlet, Act I, Scene v, ll. 66-67.

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