As the judge in the highly publicized trial of former CBC radio host Jian Ghomeshi deliberates ahead of a verdict next month, there are a number of significant aspects of the case that could weigh into his decision.
Forty-eight-year-old Ghomeshi, who rose to fame as host of CBC Radio One’s popular current affairs program Q, has pleaded not guilty to four counts of sexual assault and one count of overcoming resistance by choking. He acknowledged in 2014 that he engaged in rough sex acts, but said it was consensual.
READ MORE: Ghomeshi defence calls for acquittal as both sides await verdict on March 24
With the conclusion of closing arguments Thursday, Justice William B. Horkins has reserved his judgement until March 24 – after which Ghomeshi will be convicted of all, some or none of the charges.
The allegations against Ghomeshi
Three women brought forth strong allegations against Ghomeshi, only one of whom can be named – Trailer Park Boys actress Lucy DeCoutere.
The first complainant
The first complainant, who cannot be identified due to a publication ban, testified Ghomeshi had pulled her hair “hard” without warning while they were kissing in his car in December 2002, which she described as “painful and sudden.”
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She went on to detail another encounter weeks later, when she said she attended Ghomeshi’s home after a taping of his CBC Newsworld show >play in Toronto. She said while at his home he grabbed her hair again “really hard” and began “punching” her in the head multiple times with what felt like a “closed fist,” the witness said, adding that her ears were ringing and she felt as though she was going to faint.
The second complainant
The second complainant, Trailer Park Boys actress Lucy DeCoutere, told the court she travelled to Toronto from Halifax in July 2003 to visit friends and to see Ghomeshi in order to determine if they could “pursue a relationship.”
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DeCoutere also testified the two met for dinner in Toronto’s Danforth neighbourhood and when they arrived at his home, DeCoutere said Ghomeshi suddenly took her by the throat and pushed her against a wall before slapping her three times in the face with an “open hand” – something she said she did not consent to.
The third complainant
The third complainant, who also cannot be named due to a publication ban, testified that while kissing Ghomeshi consensually at an event in a Toronto park in 2003, he suddenly bit her and started squeezing her neck with his hands.
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The witness described the encounter as “rough,” adding “something wasn’t right” and that it felt like there was a “switch” in Ghomeshi and his hand was then on her mouth “sort of smothering” her.
The witness said she did consent to kissing Ghomeshi, but not to the alleged choking or hands over her mouth.
‘Credibility and reliability’ of alleged victims’ called into question
Ghomeshi’s defence lawyer Marie Henein took a methodical approach to her cross-examination of the three women, by attempting to cast doubt on their credibility as opposed to targeting the legitimacy of the allegations outright.
Henein attempted to systematically raising contradictory evidence that showed the complainants had omitted details in their testimony and statements to police and had pursued or made contact with Ghomeshi after alleged attacks took place, sometimes in “flirtatious” or “sexual” ways.
The first complainant
The first witness was confronted by Henein with an email she had sent to him months after the alleged assault took place in which she wrote, “good to see you again!” despite telling police six times under oath and in her testimony that she had not communicated with Ghomeshi further.
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The complainant also attached a photo of herself in a bikini, which she told the court was an attempt to “bait” Ghomeshi into providing an explanation about the alleged attack. She told court she did not remember the emails being sent, which is why she did not inform police or the Crown of their existence previously.
READ MORE: Judge refuses to release bikini photo of alleged victim
Henein suggested the idea that the alleged victim would send a bikini photo to an alleged attacker who had “traumatized” her was an “implausible explanation.”
The second complainant
Henein then attempted to cast doubt on DeCoutere by revealing she had sent Ghomeshi a series of emails in the days, weeks and even years after the alleged attack in his Toronto home – despite testifying that she had no further contact with the former CBC Radio host.
One of the emails sent to Ghomeshi just hours after the alleged attack said “you kicked my ass last night.” She added that she wanted to “f— your brains out.”
READ MORE: Trailer Park Boys actress wrote ‘love letter’ to Jian Ghomeshi days after alleged attack
DeCoutere was also confronted in court with a handwritten “love letter” that was sent to Ghomeshi five days after the alleged choking incident took place, which signed off with “I love your hands.”
The alleged victim said she didn’t “remember writing it,” which is why she didn’t tell the Crown or police about it in her statements.
The third complainant
Finally, Henein took aim at the credibility of third witness, who admitted in court she had “omitted” key details in her police statement and exchanged roughly 5,000 messages with DeCoutere before and after making her statement to police.
The defence also attacked the witness’ credibility when she revealed in an “11th hour” statement to police on Feb. 5 that she had masturbated Ghomeshi the night she was on a date with him after the alleged assault. The complainant said her statement was prompted by hearing media reports that emails had surfaced in a previous witness’s cross-examination.
What the judge has to consider ahead of a verdictThe Crown’s position
During closing arguments, Crown lawyer Michael Callaghan attempted to provide a cohesive reasoning for why the complainants brought forth allegations against Ghomeshi and stressed that none of them had consented to the application of force.
Callaghan said that each complainant reacted differently to the alleged incidents and that their “post-assault conduct” should not be held against them because “individual personalities and life experiences” can affect why and when alleged victims come forward.
READ MORE: Actress describes being told Jian Ghomeshi choked Lucy DeCoutere
He also said Decoutere’s reaction was that of trying to “normalize” the situation with Ghomeshi – which is why she contacted him repeatedly after the alleged incident.
With regard to the first witness, Callaghan said she “was still left wondering” after the alleged assault by Ghomeshi so she wrote to him to get him to provide an explanation for the alleged attack and used her body as the only “commodity” she had, which is why she sent him a photo of her in a bikini.
Conversely, Callaghan said the third complainant wanted to pretend the alleged incident with Ghomeshi didn’t happen, and especially didn’t want it to affect her family member’s career in the arts community.
Callaghan put to Horkins that he could accept certain aspects of the witnesses’ testimony and reject other aspects based on his perception of their credibility and reliability.
The defence’s position
In contrast, the defence attempted to reduce the witnesses’ credibility in the eyes of the judge, by continuously raising perceived inconsistencies in the alleged victim’s statements to police, media and their testimony heard in court during the past eight days.
Allegations of “collusion” were also raised by the defence, especially in regard to the 5,000 messages sent between DeCoutere and the third witness, in addition to the fact that they had shared a lawyer and a publicist and discussed “specific details” in the correspondence about “all matters related to this case.”
READ MORE: Complainants ‘omitted’ details, exchanged 5,000 messages with each other
The defence stressed it was not interested in pursuing the position of attacking the “post-assault conduct” of the alleged victims but simply to show the inconsistencies, omitted details and contradictory aspects of their testimony.
Henein said the concept that women sometimes “will continue to interact with people who have abused them” was not “in play” in this trial, adding that the fact the complainants claimed they were not interacting with Ghomeshi after the alleged assaults were “not true.”
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She added that Horkins could not rely upon the word of a witness who only tells “half truths” beyond a reasonable doubt in the determination of his verdict.
“The evidence in the courtroom falls so far short of proving anything beyond a reasonable doubt, it is so riddled with inconsistencies and improbabilities and proven lies under oath that it cannot be said to prove anything,” Henein said.
“It’s our respectful submission that Mr. Ghomeshi is not guilty and that he’s entitled to an acquittal on all counts.”
Deliberations ahead of the verdict
Horkins will reserve judgement and reconvene the court on March 24, after carefully weighing the details of the allegations, the credibility of the witnesses and the alleged inconsistencies between their statements to the media, police and the court.
Ghomeshi will face a second trial in June on a separate charge of sexual assault, which arose from an alleged incident in January 2008 while he was the host of Q.