Imperative to 'believe all women' turned Frank Stronach's case upside down, defence argues in closing statement
Analysis
The sexual assault trial of auto parts billionaire Frank Stronach drew near to its conclusion Monday as the defence savagely characterized the case as a disastrous inversion of the presumption of innocence, starting with a “negligent and reckless investigation.”
Defence counsel Leora Shemesh argued in her closing that the politics of the #MeToo movement improperly tainted the police investigation, with investigators succumbing to “tunnel vision” and the “unconscious filtering of evidence” to ignore anything that did not fit with Stronach’s presumed guilt.
The modern political imperative to “believe all women” turned this case upside down, Shemesh said. “The pendulum has swung so far the other way that we’ve lost our ability to balance our constitutional norms,” Shemesh said.
Police investigators believed these complainants without cautioning them against false reporting, without questioning their details or even investigating their claims, she said. It was left to Stronach himself to point out inconsistencies and impossibilities, including one sexual assault that allegedly occurred while he was provably in the United States buying horses.
“He was forced really to be the investigator in this case,” Shemesh said, referring to evidence she herself presented that would have been easily available to police, such as litigation records, property records and crucial witnesses.
By bringing charges on such a flimsy basis, Stronach was “labelled a villain” and publicly prosecuted in the media before he was able to offer any kind of defence, his lawyer claimed.
When they finally were up on the witness stand, in some cases a decade after reporting their claims, which mostly date to the early 1980s, the women complainants “lied, manipulated and certainly tried to deceive the court,” Stronach’s lawyer Shemesh said. “They all failed quite miserably on credibility and reliability.”
Of four women complainants, the defence claims two have fabricated their stories, and two did in fact have sexual encounters with Stronach at his Toronto waterfront condo that they regret, but Stronach had an honest, if mistaken, belief that their consent was given.
One witness was “unhinged,” and her story “absurd,” Shemesh said, with bizarre details that defy common sense belief. Another witness was rude and a liar, her testimony amounting to perjury, and she used the witness box as a “stage” for her “theatrics,” adding and subtracting details from her story “on a whim.”
“The entire story is completely unbelievable,” Shemesh said, and even if the judge were to believe it, the witness herself testified that Stronach “may have thought this was consensual.”
That woman’s allegation, however, is one of those the defence claims is entirely fabricated, and allegedly took place in an apartment that Stronach allegedly never even had.
Another complainant “played a character of an extremely successful businesswoman who ran three multimillion dollar companies,” presenting herself with a “grandiose flavour” by dropping mentions of her charitable donations and her busy schedule, repeatedly calling herself a “tax-paying citizen” who is making sacrifices to be present in court, even using a fancy Birkin bag on the witness stand as what Shemesh called a “prop.”
“Every question and answer was a point to be scored,” Shemesh said.
“She was and is a fraud” who tried to “dupe” the judge, Shemesh said. The charity was not from her but rather corporate sponsors, the businesses were broke, and even the tax paying was in question. The defence also alleged she lied under oath, once about having consulted a civil lawyer, and again about when she last read her preliminary testimony transcript. That second alleged lie only came to light because the Crown drew it to the defence’s attention, having earlier been scolded by the judge for not speaking up when a complainant testified something that the Crown knew was false.
Monday afternoon the Crown prosecutors took their final shot at saving their foundering case. Prosecutor Jelena Vlacic stumbled over pointed questions from Judge Anne Molloy, who referred to one woman’s “embellished” stories, and challenged Vlacic about how she could believe this witness when “everything she said is just smoke and mirrors.”
“This is the one that troubles me greatly,” Molloy said.
In the coming days, the defence will argue a separate “abuse of process” motion that all the charges should be stayed because police and prosecutors allegedly improperly coached the complainants about what to say in their testimony, and how to say it.
But even in the Crown’s basic description of the case in its closing arguments was an acknowledgment of how much the Crown has already lost.
“This is a case about four women and four allegations,” said Vlacic by way of introduction. She did not mention, as everyone involved already knows well, that three women complainants have already been dropped from the case, which originally involved seven alleged sexual assaults against seven women.
The allegations of these three women had no reasonable prospect of ending in convictions, the Crown earlier conceded, in one case because the complainant had an emotional meltdown that made her testimony impossible to guide or understand. In another case, a complainant admitted lying on the witness stand about whether she had read a crucial newspaper account of another woman’s allegations against Stronach that bore important similarities to hers. And in the third, the defence was able to demonstrate a complainant had a long history of controversial business litigation including a finding from a civil judge that she had been deceitful and dishonest under oath, and also an unrelated allegation that she falsely reported to police that a man had tried to kill her.
This evidence about the credibility of a key complainant only came to light because of defence research, which Shemesh said was emblematic of how the case has gone so wrong, reversing the burden of proof from prosecution to defence.
After these closing arguments and the stay application, the case will be left in the hands of Molloy, a senior judge of the Superior Court of Ontario, who is hearing the case without a jury.
When prosecutor Vlacic raised the issue of how trauma can affect memory, which might explain some of the problems in the women’s testimony, Molloy interjected: “I know that area. I’ve taught that area. I’ve written on that area. It’s a lot easier to deal with missing pieces … when the evidence is fresher. But when it’s 40 years after the fact, is it trauma? Is it the passage of time? I don’t know which is which here.”
Earlier in the day, Molloy posed an open-ended question to both Crown and defence, asking “to what extent do the mores of the early 80s have an effect on consent or honest but mistaken belief in consent?”
“It was a different world and nobody says, ‘Would it be okay if I …’,” Molloy said. “I’m not sure.… I feel like I’m on thin ice going there.”
Judge Molloy is experienced with high stakes, high controversy trials. She was recently in the news when Ontario Premier Doug Ford said she should apologize for suggesting police witnesses colluded and lied during the first degree murder trial of a man who ran over a police officer in a parking garage. He was acquitted by a jury, and afterwards, the Ontario Provincial Police investigated and found no police misconduct, which prompted Ford’s comment.
Molloy also heard the case against Alek Minassian, perpetrator of the 2018 Toronto van attack that killed 11 people.
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