A witness in need of a blankie, soother

From Saturday's Globe and Mail

To borrow from Woody Allen's character in the 1971 film Bananas, the proceeding at the Old City Hall courts in Toronto yesterday was “a travesty of a mockery of a sham of a mockery of two travesties of a mockery of a sham.”

The very apparatus of the same state that a week earlier put pregnant teenager Noellee Mowatt in jail – to howling outrage from women's activists, tsk-tsking from politicians and, more important in the modern scheme, Much Bad Publicity – twisted itself into a pretzel and arguably even bent the Criminal Code to accommodate and ultimately spring her from the joint.

As Ontario Court Judge Beverly Brown said herself, she didn't really believe she had the authority to release Ms. Mowatt from a warrant imposed by another judicial officer – she thought only a judge of the Superior Court could do that – but in the “urgent circumstances” of this case, she released her anyway on her own recognizance, essentially on a promise to appear when her further evidence will be required.

Those urgent circumstances, Ms. Mowatt's pregnancy, are substantially less urgent than what she had testified to before: Her due date is not, as widely reported, next week, but rather the middle of May.

The courtroom was physically rearranged, the witness box moved to the far corner to spare Ms. Mowatt the horror of being close to the prisoner's box containing her boyfriend, Christopher Harbin.

A “support person” was duly positioned in her line of sight.

Her lawyer, Lydia Riva, although Ms. Mowatt was but a witness and thus had no standing to have counsel, was duly consulted throughout.

Ms. Mowatt, a Jamaican immigrant who turns 20 next Tuesday, was first arrested on what is called a material witness warrant on April 1 after she allegedly had avoided being served with a summons to appear at Mr. Harbin's trial.

It was at her bail hearing last week that Justice of the Peace Lynette Stethem ordered her held in custody until yesterday, when the trial started with Mr. Harbin formally pleading not guilty to eight charges, including four assaults, one assault with a weapon, one forcible confinement and three counts of breaching earlier probations.

A transcript of the earlier hearing obtained by The Globe and Mail shows that during this proceeding, Ms. Mowatt admitted to giving her welfare worker an inaccurate address and to visiting Mr. Harbin between three and 10 times in jail, and that, according to Detective-Constable Mandy Morris, who testified, she had failed to keep three appointments to receive her subpoena for court.

Prosecutor Dominique Basile also told the court that even Ms. Mowatt's aunt told police she wasn't going to be co-operative, and that a children's aid society has alerted all area hospitals that they would be apprehending her child at birth.

In short, it appeared the chances that Ms. Mowatt would come back to testify ranged from slim to none.

So, the material warrant kept her in custody – whence, it must be said, she conducted numerous media interviews during which she pledged that she would never again call the police for help – and there she was yesterday, hair in neat braids, little glasses on her nose, and noticeably pregnant in her green prison-issued sweatsuit.

But there was little victory in her under-the-gun appearance.

First of all, Ms. Mowatt spoke so softly, and in such mumbling fashion, that she could barely be heard – although on the recording of the 911 calls she made last Dec. 28 to report Mr. Harbin as a beast, she had a nice strong voice, and in her subsequent videotaped interview with Det.-Const. Morris and her partner, she was at least audible.

More significantly, Ms. Mowatt, whose first child, a daughter, remains in Jamaica with her mother, recanted.

Those assaults she had reported to the police and elaborated on in great detail in her interview? Why, she had made them up because she was angry with Mr. Harbin for kicking her out of the rooming house where they were living. Those marks on her face, arms and foot? Why, they were variously the result of bug bites, a carpet burn, a door slamming on her foot, a bump into a wall, an unfortunate sleep upon a hard object.

Even in the ghastly minutia, she changed her tune. Yes, Mr. Harbin watched pornography on his laptop in their grim small room, but he was just pretending to masturbate, to bug her. And certainly, he never went so far as to ejaculate. She admitted only that it made her feel disrespected – well, that and when he allegedly called her a “pig” and a “nigger.”

What she didn't deny, she claimed not to remember, so often that prosecutor Erin McNamara eventually had her declared adversarial so she could cross-examine Ms. Mowatt, her own witness – to no avail, for she stuck to her new, improved story. She cares for Mr. Harbin, she said; she wants him to be involved with their baby. She regretted calling 911 for help. “I didn't really need help,” she said. “I wasn't in any danger.”

Outside court in the morning, swarms of activist women showed up, one of them Wendy Komiotis, the executive director of the Metropolitan Action Committee on Violence Against Women and Children, or METRAC. She approached me to offer her view that Ms. Mowatt never should have been jailed, and was painting broad-strokes pictures of how all battered women are fearful, and that there must be “alternate ways to give evidence,” perhaps non-legal solutions where women could report through a third party, or testify privately.

“Women,” she said, “just want the abuse to stop. Women want the violence to end.” She then told me I didn't understand the “power dynamics” and suggested I work at a shelter for a year.

Well, the power dynamics yesterday were as follows.

The judge was a woman, as was the jailing J.P.; the prosecutor yesterday was a woman; two of the three lawyers were women; the court reporter and some of the court security guards were women. The only place you could have found more estrogen was maybe at a nice spa.

Ms. Mowatt wouldn't come to court and went to jail. Under duress, she then came to court and either lied there or she lied when she accused Mr. Harbin. She was treated throughout not merely as a victim, but as a feeble creature of unimaginable delicacy; she was all but given a blankie and a soother. And in the end, she left a free girl.

Mr. Harbin, 25 or 26, has been in jail since Dec. 28, the day of his arrest. But for saying “not guilty,” he uttered no words in court yesterday. Even his lawyer barely said a word. It is Mr. Harbin's trial. It is he who is supposed to be presumed innocent. The result of decades of zero tolerance against domestic abuse is a mockery of a sham of a mockery – oh yes, and a lousy case to boot.