February 19, 2016
The trial of Jian Ghomeshi for sexual assault has ended after two weeks without his ever taking the stand in his own defense.
His lawyer, Marie Henein, aggressively and repeatedly hammered away at the credibility of the three complainants, metic-ulously attacking discrepan-cies and omissions in their statements.
Ghomeshi gave up his right to a jury trial and Judge William Horkins will render his decision March 24.
But before he does, he must decide how much to take into account the doubts raised about the three complainants’ credi-bility and whether those questions are enough to taint the credibility of the core allegations.
“Where there’s no counter-vailing story, then the judge only focuses in on the credibility of the witnesses,” John Rosen, a Toronto-based criminal defense lawyer, told the Canadian Broadcasting Corp., for which Gho-meshi worked before the allegations upended him.
“And the judge may say ‘Yes, this witness has difficulty here, this witness had difficulty there, but on the core issue, I accept her evidence.’ In which case, there will be a conviction.”
Sexual assault cases often boil down to a he-said, she-said scenario, but in this trial, the ‘he’ — Ghomeshi — did not testify. And the specifics of the case —whether Ghomeshi punched, slapped or choked the women — were largely unchallenged.
Ghomeshi, 48, has pleaded not guilty in court to four counts of sexual assault on three women, all related to events alleged to have taken place from 2002 to 2003.
Henein suggested to Lucy DeCoutere, an actress and the only one of the three women to have been identified by name, that the choking incident she described in court ”never happened” and that she had been “lying about it.” And Henein pointed out discrepancies regarding the specifics of the alleged assaults.
Another of the complainants gave conflicting accounts of whether she was pushed down to the ground or pulled down by her hair, for example. One wit-ness gave differing accounts of whether she was choked or slapped first by Ghomeshi. And another said Ghomeshi used one hand to squeeze her throat, then changed her account of the incident to say he used two.
In closing, defense co-counsel Danielle Robitaille suggested that the inconsistencies in testimony raised reasonable doubt about whether the incidents happened at all and whether there was an “absence of consent.”
But mostly, during her cross-examination, Henein focused on poking holes in the evidence and statements related to events leading up to the alleged assaults and the women’s contact with Ghomeshi afterward.
Henein argued that the core allegations must be dismissed since the complainants’ cred- ibility when it came to other details had been irreparably damaged.
“If a witness lies even about a peripheral thing, it destroys her credibility,” said Rosen.
The first witness had told police and the court she had no subsequent contact with Gho- meshi after two alleged attacks, but later acknowledged she sent him two emails and a picture of herself in a bikini more than a year later. The woman said she sent the emails to bait Ghomeshi into calling her to explain his actions.
DeCoutere had told the court that she had no romantic interest in Ghomeshi after her alleged assault and only saw him at industry functions.
But it was later revealed in court that hours after the alleged sexual assault, she had sent him an email saying she wanted to have sex with him and sent him a handwritten letter days later saying she was sad they didn’t spend the night together.
The third woman, who told police she would only feel safe being out with Ghomeshi in public after her alleged assault, failed to disclose that days later, she had consensual sex with him.
“The trial judge is clearly entitled to consider prior inconsistencies, prevarications and outright lies in determining whether, and to what extent, a witness is worthy of belief,” said Michael Plaxton, an associate professor at the University of Saskatchewan’s College of Law. Where the inconsistencies relate to relatively tangential matters, it would not be unusual for a trial judge to dismiss them, he said. Nor is a judge forced to choose between accepting a witness’s evidence in its entirety and rejecting it altogether..
“He may accept parts of it and reject other parts — meaning that he could conceivably decide to accept the core of the complainants’ allegations even while rejecting their other testimony as lacking in credibility,” Plaxton told the CBC.
In the Ghomeshi case, Plax-ton said, the sheer number of inconsistencies, acknowledged lies and problems with memory — as well as plausible motives to lie and opportunities for collusion between witnesses — will be difficult for the judge to discount, the CBC concluded.
For a criminal case, “beyond a reasonable doubt” is the bar that must be met—in both Canada and the United States.
As well, the judge cannot draw any inference against the accused for not presenting any evidence or testifying—the same rule exists in the United States as in Canada.
