Frank Stronach's fierce defence: Billionaire's combative lawyer sets tone for his sex assault trial
Analysis
The sexual assault trial of auto parts billionaire Frank Stronach started well enough for the prosecution.
Opening its case this week before a judge alone, the Crown sketched a preview of seven women complainants who will tell similar stories with common elements that allegedly reinforce the credibility of each other, and reveal Stronach’s alleged pattern of pressuring women into his lakeview apartment in Toronto, then sexually assaulting them despite their tears and refusals. A second trial with more recent allegations is scheduled for later in York Region. This one deals with incidents between 1977 and 1990.
The first witness, a woman in her sixties who has worked in politics and whose identity is protected by a publication ban, told a story of power differential when she was a young newly hired equestrian groom at Stronach’s Beechwood Farms. Out for dinner with two other female grooms at a Toronto restaurant owned by Stronach, she said Stronach showed up as a surprise, gave her Champagne, groped and assaulted her on the dance floor, then raped her at an apartment with a mirrored bedroom ceiling, and then drove her at dawn back to her car.
But under cross examination, it started to fall apart. She does not remember long stretches of the night, and claimed not to have drunk any alcohol, despite previously telling police and reporters that she had. And what she does remember, she appears to have remembered in different ways at different times.
Things that seemed merely odd or curious when she first mentioned them to the prosecutor turned into bizarre disclosures under deeper cross-examination, not just that she has bipolar disorder and concussions that have affected her memory, but also that at the time of the alleged crime she had paralyzed vocal chords that left her “functionally mute,” which she attributed to damage from doing John Wayne and Jimmy Durante impressions for friends but mainly for herself. She acknowledged she had never mentioned this detail at all until the preliminary inquiry last year, in the context of whether she had ever spoken the word “no.”
The witness struggled to explain inconsistencies in her previous reports to police and interviews in major Canadian media, from minor details such as the clothing she wore on the night in question, to major details such as the calendar year the alleged assault happened. Eventually, she faced provocative accusations from defence counsel that she never even worked at Stronach’s horse barn at all, and that nobody who does work there has ever heard of her, and that she is in fact a “storyteller” who is not so much recalling her memory of rape, but rather adjusting the details of her ever changing story to fit what makes the most sense for the prosecution’s case, to fill in the blanks between what she called her “strobe” “flashes” of memories interspersed with long blackouts.
“I was able to unknot the chain of my memories,” the witness said, referring to a pretrial interview with police and the Crown that happened just last month, when she refreshed her memory of her allegations by looking through a document that the police thought was a contemporaneous “diary,” but which the witness described this week at trial as a recently compiled “brain dump.”
By the end of her first day, the witness seemed to have melted into a puddle on the floor. She knocked over her water bottle, the judge told her kindly to “pull yourself together.” Thursday 4:30 p.m. came like a mercy, but by 10 a.m. Friday she was back in the witness chair, in the cold light of a withering cross examination.
This defence momentum is the initial achievement of Leora Shemesh, Stronach’s defence counsel.
It made for an awkward and sometimes unpleasant scene, made more uncomfortable in the gallery by the occasional snickering and smirking of two women, both of whom came and left in Stronach’s company.
It was uncomfortable because there is more at stake here than one woman’s patchy memory of her salacious accusations. There is more at stake than just the seven women complainants in this trial, or even the others in the next trial. Rape trials have a way of being national cultural touchstones.
For example, the former CBC host Jian Ghomeshi looms over this proceeding of a famous man facing charges of sexually assaulting women over whom he had professional power. So does Bill Cosby.
“I believe it was the Jian Ghomeshi trial,” the witness said when asked why she came forward in 2015, more than 30 years after the alleged assault. She said she felt like a hypocrite for staying silent as the Ghomeshi saga was unfolding, as a Canadian preview of what would later become the MeToo movement. She also told a police officer it was news about Bill Cosby that prompted her to come forward to police in the summer of 2015.
Both of those men were notoriously charged with similar crimes and both are free today. Ghomeshi hired a famously fierce woman defence lawyer to defend him.
That was Marie Henein, whose successful defence of Ghomeshi by attacking the credibility of his accusers solidified her position as Canada’s pre-eminent defence counsel. Shemesh cuts a similarly intimidating figure in lawyer robes. Her black nail polish adds a slightly gothic menace to an otherwise icy corporate air that chimes with her billionaire client’s reputation. Stronach himself watches her with rapt attention.
In Shemesh’s submissions, there is no self-effacement, no obsequious deference, none of the false modesty that lawyers sometimes use to seem nicer than they are. She speaks clearly and simply, with no bumptious folksy barrister’s aphorisms about, say, closing the barn door after the horse has left. Her words are quick, to the point, on the clock, but also sharp, pointed, cutting.
“I’ve never really been accused of being soft-spoken,” Shemesh said to the witness, when once she had trouble hearing. It was a little sarcastic levity in the middle of a savage cross examination.
Even minor details fell apart. For example, she told a story about Stronach appearing unexpectedly at the dinner with her two new girlfriends with a bottle of wine held aloft dramatically as if to say “Surprise!” But she also once swore a statement that he “ordered” the bottle, as if from a waiter.
“Ordered. Brought. My language is not that structured, sorry,” the witness told Shemesh.
But the worst problem for the witness was the year of the alleged rape. Since going to police, she has consistently connected it to her 21st birthday, which was a couple of days later, which means the assault was in July 1980. She once posted on social media it was 1982. But here at trial she said she is not sure of the date, but is 90 per cent certain it was 1981.
Like many of her answers, this one invited further questions. How do you quantify a memory? What’s the difference between being 90 per cent sure and, say, 75 per cent sure? Fifteen per cent of what?
Shemesh suggested this discrepancy arose because the witness learned at the preliminary inquiry that Stronach was not in the country in 1980, and so she has changed her story. This required some further adjustment in her timeline, Shemesh said, because the assault is alleged on a Thursday in advance of her birthday on Saturday, and that only works for the 1980 calendar. In 1981, her birthday was on a Sunday.
“I don’t add or subtract very well,” the witness said by way of explanation.
Under Shemesh’s questioning, the witness also said she is now confident in the 1981 year because someone had sent her flowers for her birthday then, and mentioned that her mother had thrown her a bridal shower in anticipation of marriage to this man, which gave a clear reference point in time. She gave his name, which Shemesh obviously already knew.
“I’m going to suggest he doesn’t meet you until June of 1982,” Shemesh said, the first of several direct accusations that key parts of the woman’s story are demonstrably false. One wondered whether this man might turn up in that same witness chair one day later in the four weeks scheduled for this trial.
There are more witnesses to come, and more allegations, but Shemesh’s rumbling of this witness has set the tone of this trial so far. Even before the start of the trial proper, Shemesh asserted herself as a combative barrister. For example, her examination of Gabe Di Nardo of Peel Regional Police, the lead investigator, was a punchy affair of a seemingly unflappable detective getting flapped.
Shemesh, for example, voiced her skepticism when the officer testified he could not account for why he had put the word “YES” in his notes in all caps as the response to a complainant’s question about making sure she could get a detail into her testimony, about her crying at a relevant time, which was in an email but not her video statement to police.
As Shemesh waited for the officer to give his answer, with which he evidently struggled, she took off her large heavy-rimmed glasses and held the temple in her teeth, letting the frames gently bounce. As a gesture, it said nothing if not that Shemesh was enjoying this.
Sometimes criminal trials are more entertaining without juries, when lawyers are playing to an audience of one judge, not twelve random citizens. They can be themselves, dispense with niceties. But the dramatic edge remains important, even the small details.
Shemesh, for example, has a preferred spot for cross-examination. She likes to be back to the side near the empty jury box, rather than at the counsel podium front and centre. Her spot gives her a more direct view of the witness, but there is no podium there and the main one doesn’t move.
Fortunately, there was an extra lectern off in the corner. It looked old timey, handcrafted, and incongruous beside a black computer monitor, maybe as if it had been lugged over to this courthouse one day long ago from ye olde Osgoode Hall next door.
“This one’s cute but it’s wobbly. It’s archaic,” Shemesh said as she moved it into place, but it suited her, gave her a direct line of sight to her target. Her new spot also gave the gallery the occasional glimpse of the red soles of her high heeled shoes. She was arranging the courtroom to her advantage, down to the level of the furniture. A questioning lawyer wants to be fully seen. It seemed to work.
At one point, the witness stopped in mid-sentence, clasped her hands as if in prayer, then opened them wide, and waved them back and forth, as if illustrating her state of mind.
It spoke volumes. At this early stage, it spoke to reasonable doubt, as if the score is one down, but six to go.
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