Canadians are watching the trial of Harvey Weinstein, in a Jan. 7, 2020 story. (Photo by THE ASSOCIATED PRESS)

Canadian legal experts say #MeToo transcends Harvey Weinstein trial

Canadian court watchers are keeping a close eye on the trial of Harvey Weinstein, but some say the #MeToo movement his case helped spur transcends any legal verdict.

Wayne MacKay, a professor emeritus of law at Dalhousie University, said the case shows #MeToo is more than hashtag — that it can also bring criminal consequences.

Still, it remains to be seen whether the rape and sexual assault charges against Weinstein will hold up in court. Weinstein has pleaded not guilty.

“I think in one sense, (Weinstein’s accusers are) obviously excited that it’s finally coming to an actual trial,” said MacKay. “On the other hand, I’m sure they’re somewhat nervous about whether in fact, as so often is the case, they will be disappointed by the result of the criminal process.”

MacKay said the Hollywood mogul’s notoriety could present difficulties in ensuring Weinstein’s right to a fair trial, which proved to be true as jury selection began in New York on Tuesday.

After the first 120 potential jurors were brought into courtroom, the judge asked if there was anyone who could not be impartial in the case. About 40 hands went up. Those people were dismissed.

“It’s going to be a very challenging trial … because there is so much knowledge and so much information out there,” said MacKay. ”It does certainly appear that most in the public have pretty well pre-judged the situation.”

MacKay said the extensive news coverage could seep into the courtroom — a concern defence lawyers raised Tuesday following a flurry of publicity when Los Angeles prosecutors filed new sex-crime charges.

On Monday, prosecutors in Los Angeles charged Weinstein with sexually assaulting two women on successive nights at hotels in L.A. and Beverly Hills during Oscar week in 2013.

In New York, Weinstein is charged with raping a woman in a Manhattan hotel room in 2013 and forcibly performing a sex act on another woman in the city in 2006.

Weinstein has said any sexual activity was consensual, and has repeatedly denied any wrongdoing.

The most serious charges against Weinstein — two counts of predatory sexual assault that carry a mandatory life sentence — require that prosecutors demonstrate Weinstein had a habit of violating women.

To make their case, prosecutors plan to call some of the more than 75 women who have come forward publicly to accuse Weinstein of sexual misconduct ranging from harassment to assault.

Toronto criminal defence lawyer Daniel Brown said prosecutors used a similar strategy to secure Bill Cosby’s conviction for drugging and molesting a woman in 2004.

Canadian Andrea Constand was the sole complainant in the case, but her account was backed up by five other women who testified that the now 82-year-old comedian drugged and violated them over the years.

“The fact is simply hearing from other women and hearing that other women have gone through a similar experience is going to lend credibility to the main complainants,” Brown said.

“The jury will have to consider the similarities between those multiple allegations, and whether or not it speaks to a pattern of misconduct.”

While there can be power in numbers, Brown said there’s also an increased risk of witnesses influencing each other’s testimony.

In Jian Ghomeshi’s 2016 trial, Brown said the defence raised such concerns in an attempt to discredit two accusers who discussed their sexual assault allegations against the former broadcaster in thousands of messages they exchanged before and after they went to police.

Ghomeshi was acquitted of four counts of sexual assault and one count of choking involving three women. He later signed a peace bond after apologizing to a fourth woman that saw another count of sexual assault withdrawn.

University of Toronto law professor Brenda Cossman said the impact of #MeToo shouldn’t be measured by the number of high-profile convictions, but how the courts function on a day-to-day basis.

While there’s been a radical shift in how society thinks about sexual assault, the letter of the law has mostly remained the same, said Cossman. There are signs that law enforcement officials are feeling pressure to address the issue, but it will take time to see if that translates into meaningful change.

“#MeToo was a performance of the complete failure of the legal system to address the pervasiveness of sexual violence in women’s lives,” she said.

As Cossman sees it, the success of the #MeToo movement is that it empowered the public to take justice into their own hands in holding predators accountable.

“There are a lot of people who are looking at the criminal justice system as being the apex of justice,” she said. “I see an enormous victory for the MeToo movement in terms of what has already happened to Harvey Weinstein.”

—With files from The Associated Press

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