Jian Ghomeshi trial: Collusion allegation could factor heavily in ruling, lawyer says

Over a period of eight days in February,Jian Ghomeshi's defence counsel worked over the testimony of the three complainants in the former CBC broadcaster's sexual assault trial, laying out inconsistencies, omissions and an allegation of collusion before Ontario Court JudgeWilliam Horkins.

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Ghomeshi himself did not testify at the judge-only trial, butHorkins cannot hold that against him when makinghis ruling, which is expected to come down March 24. Instead, the judge's decision must be basedon whether he believes the evidence presented by the Crownor whether he feels the defence cast reasonable doubt on the credibility and reliability of the complainants' testimony.

Ghomeshi, 48, has pleaded not guilty tofour counts of sexual assault and one count of overcoming resistance by choking, all of which relate to incidents that are alleged to have occurred in 2002 and 2003 and involve three women.

It's been six weeks since the two sides made their closing arguments atToronto's Old City Hall courthouse,so here's a reminder of some of the key moments of thetrial that lawyers say will factor intothe judge's ruling.

How independent was the testimony?

The outcome of a sexual assault trial often hinges on the reliability of a complainant's testimony. If there's no physical or other corroborating evidence, the trial boils down to a he said/she said narrative. And sinceGhomeshi never testified, it wasonly the women's accounts of what occurredthat underwent intense scrutiny.

The Crown can, however, attempt to corroborate witness testimony and establish a pattern of behaviour if they can prove the witnesses formulated their accounts independently, criminal lawyer Russell Silverstein said.

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"When you have three people telling similar stories about a particular accused and there's no way they could be privy to each other's stories [it] increases the likelihood they're telling the truth, because it defies coincidence," Silverstein said.

But Ghomeshi's defence lawyer, Marie Henein, undercut that strategy, the litigator said.

Emails to Ghomeshi

9 years ago

Duration 2:35

Lucy DeCoutere emailed Jian Ghomeshi hours after an alleged sexual assault, saying she wanted to have sex with him

Henein told the court that two of the complainants, Lucy DeCoutere who has waived her right to a publication ban and another womanhad exchanged thousands of messages, some of which discussed their allegations against Ghomeshi.

Crown prosecutor Michael Callaghan told the court that while the pair supported one another, there's no sign they colluded to come up with similar accounts of the alleged assaults.

But Silverstein said the sheer number of messages they exchangedkilled any possibility of using each woman's testimony to support the other's.

"Once the Crown was deprived of that, it really got in the way of their hopes for a conviction," he said.

Emails and new police statements

In his closing arguments, Callaghan called on the judge to consider the reliability and credibility of the witnesses, noting that none of the three women wavered in herallegations against Ghomeshi which includedhair-pulling, slapping, punching and choking.

It's hard to make out proof beyond a reasonable doubt on the back of a witness who hasn't been truthful about important matters.- RussellSilverstein, criminal lawyer

The defence uncovered few inconsistencies in those core allegations. Henein questioned some parts of the sequence of events whether one complainant was choked or slapped first, for example but the bulk of her questioning focused on the inconsistencies between the women's testimony and the content of correspondencethey sent to Ghomeshi after the alleged assaults.

The first complainant never disclosed to the court or police that she had sent an email to Ghomeshi after the alleged assault that included a photo of herself in a red bikini.

After the defence presented that email and another in court, DeCoutere's lawyer approached the Crown and asked whether he would be interested in knowing whether there was any communication between DeCoutere and Ghomeshi.

DeCoutere made another statement to police on the day she testifiedbut did not go into detail about all of the roughly two dozen emails she and Ghomeshi exchanged after the alleged sexual assault in July 2003.

Described in some media columns about the trial as "bombshells," these emails seriously damaged those two complainants' credibility, Silverstein said.

The issue is not that these women maintained contact with Ghomeshi, Silverstein said, but the fact that they withheld that information from police and, to some extent, the court.

"It's hard to make out proof beyond a reasonable doubt on the back of a witness who hasn't been truthful about important matters," Silverstein said. "I just really get the sense that the witnesses tried to mould their report and their testimony in a way so as to secure a conviction and they were caught doing so."

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Former B.C. Crown prosecutor Wendy van Tongeren, however, said that it's important to note that the two witnesses did, in fact, mention theircorrespondence with Ghomeshiin their testimony. The first witness said she "might have drafted" an email in angerwhile DeCoutere did disclose she maintained a playful correspondence with Ghomeshi after the alleged assault.

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But when questioned about the contents of specific emails and a letter,DeCoutere told the court that she genuinely did not remember sending an email after the alleged assault in which she said she wanted to have sex with Ghomeshior writing him a six-page written letter.

Her failure to recall details could be related tothe natureof memory, said van Tongeren, who specialized in sexual assault.

"Chances are they will remember there was some contact, not the extent of the contact, because it's become a script memory and the only cueis you sitting at your computer," she said. "If I asked you to tell me everything you've written on your computer in the last six months, how are you going to do?"