Toronto: The Ghomeshi Trial

Here is a link to the twitter feed reportage of the closing arguments of the Crown and the Defense that appeared in The Toronto Star. The tweets were filed by Star reporters, Alyshah Hasham and Kevin Donovan and are closely parallel, differing occasionally in detail, as would be expected of a running account.:

www.thestar.com...

They appear in reverse order, latest first. By scrolling to the bottom of the list and then starting to read them, upward, one will be reading the "tweets" in the chronological order they were written, i.e. the order that points were made by the Crown Prosecutor and by the Defense attorneys in their summations.

The following is entirely based on the "tweets" of the reporters from The Star. There is some degree of prose-ification and amplification of what they tweeted, but the information is simply my own rendering of their observations.

Summarizing the Crown's statement:

The Crown says that it will not file a "similar fact" application. The case is about the right to physical integrity, safety and security.

Crown refers the judge to items of case law on sexual assault.

The condition of sexual assault is satisfied if the accused knew that the complainant was saying "no" but also if the complainant is not saying yes.

Kissing is the context in which assaults were alleged, therefore sexual assault is the offense.

The assaults took the character of slapping, hitting, hair pulling in one case and choking in one case.

Crown refers to the first complainant: She asserts that Ghomeshi yanked her hair as they were kissing in a car. They kissed after this again when he became "nice" again. At his home he pulled her hair again and punched her three times. She did not consent to this.

Crown moves to Lucy De Coutere's allegations: Asserts that Ghomeshi pushed her against a wall, choked her and slapped her three times.

Crown moves to third complainant: Asserts that Ghomeshi squeezed her neck and then put his hand on her mouth. It is noted that she had a romantic encounter with him some time after the assault.

Crown deals with the law pertaining to "delayed disclosure" of a complaint. Testimony of an expert is not required to validate a delay in disclosure and an adverse inference cannot be drawn from delaying disclosure. Supreme Court cited.

Crown: Complainants all provided reasonable explanations for not coming forward at the time the alleged offenses occurred. Crown gives reasons: one complainant feared not being believed, one thought that a victim needed to be "broken and raped" in order to qualify as an assault victim, one came forward when she detected a pattern.

Case law is cited to acknowledge that victims react differently to sexual assault and that victims of this kind of assault are not more likely to fabricate allegations than victims of other sorts of assaults.

Crown says that victims of sexual assault often do not disclose at all, or wait a long time to do so. Says Lucy De Coutere tried to "normalize" the "situation" after she was assaulted, in ways that she admitted might appear bizarre. She worked in the same industry and was a "people pleaser". Each of the women reacted differently.

Crown cites Supreme Court saying that since sexual assault often takes place in private, victims do not have to provide corroborating evidence.

Crown speaks to witness credibility. Witness credibility is the key issue. Suggests that the Judge has tools to assess credibility and can accept all, some or none of the evidence.

(My note: The "evidence" referred to is the statements given under questioning by the Crown Attorney when the complainants and, I believe, one witness, told their stories on the witness stand. This part of the proceedings is known as the direct examination or the examination-in-chief and is referred to later by the attorneys for the defense.)

Crown on the credibility of the first complainant:

It is known that she went to the Play taping. Refers to confusion about the car driven. Complainant said it was a VW Bug but Ghomeshi got that car months later. Complainant admitted to being fuzzy on some details. Crown says her memory changed because it solidified over time. Crown notes that she had tried to suppress the memory and that it was painful to bring it up again.
Crown said that she had no motive to fabricate evidence and that the defense did not call evidence to contradict her. Said that she was misquoted in The Star. Crown downplayed emails she sent to Ghomeshi after the assault and cautioned against expecting stereotypical behavior from people. Said that her testimony was plausible and that she stuck to her story, which was, essentially, unchallenged by the defense in cross examination.

Crown on the credibility of Lucy De Coutere:

Suggests that the judge should be mindful of the impact of the passage of time in relation to her testimony and says that the defense will point to communications she had with the accused after the alleged assault took place. Crown says her post assault behavior is related to her attempt to "normalize" the situation. Says she did not believe that her post assault behavior was important and did not recall her post assault communication with Ghomeshi. Says that she and another complainant communicated with each other in a kind of support network and that this was natural.

Crown on the credibility of the third complainant:

She knew Ghomeshi as an acquaintance in the arts industry and was fuzzy on circumstantial details apart from the sexual asault itself. Says she was candid about her memory lapses but should be relied upon in what she did recall. Crown says that this type of case would not furnish external evidence. Crown anticipates defense will challenge her story in media interviews, but asserts that there is no evidence that the media were quoting her accurately. Says her inability to remember if Ghomeshi used both hands or one was accounted for by passage of time. Assault is alleged to have occurred 13 years ago. Said she and De Coutere were two friends "venting" in their communications. Said she admitted she withheld information from the police because she was embarrassed about speaking to them about these sort of details.

Crown says that all three complainants were unshaken in their allegations that they had been assaulted. Said De Coutere was "resolute" on the key points of her allegations and all three were steadfast, despite vigorous cross examination.

Crown finishes statement.

For the defense Danielle Robitaille will speak to the evidence and Marie Henein will speak to the law.

DR on the first complainant:

Says there were discrepancies between the statements she gave in her media interviews and her testimony. Says the complainant told the CBC that she and Ghomeshi were not being intimate when he pulled her hair, but told the police the kissing accompanied the hair pulling. Says the complainant testified she deliberately left out the kissing from media interviews because she wasn't sure about the order of events.

Says that complainant couldn't recall her answer when Ghomeshi asked her "do you like this?" during the encounter in question and says that this undercuts any assertion of absence of consent and even raises the question of whether the events as described occurred at all.

Says that first complainant could not come up with a coherent account of the alleged assault and communicated by email, with the police, in a way that should raise concerns a about her credibility, with the judge. This refers to the assault in the car. At Ghomeshi's house complainant told media she was "pulled" to the ground and "thrown" to the ground. Says complainant told police her recollection was blurry. Says that the complainant had sharp memories of the taping she attended 10 years ago but not of the assault. Says the complainant has no coherent account of the assault.

Says that first complainant's memory improved after her statement to the police and after she spent time talking to them. Says that experienced judges know that memories don't get better with time.

Says that the complainant told media that she was nervous during the police interview but that it was easier than she thought it would be.

DR says that the defense position was based on a divergence between statements made under oath that the complainant did not communicate with Ghomeshi again and was traumatized when hearing his voice, made to the police, and her emails to Ghomeshi, after the alleged assault, in which she said she enjoyed watching him on TV and wanted him to contact her.

DR says the pattern of disclosure was cause for concern as well as the length of time before disclosure. It was only during the examination-in-chief that the complainant said she might have sent Ghomeshi an "email sent in anger".

DR points to something the complainant said during her testimony, referring to an acknowledgment by the complainant that "I remember reading these (emails)", indicating that she was aware of communication with Ghomeshi that she had sworn, to the police, had not occurred, that she wanted Ghomeshi to call her when she had sworn to the police that she had not communicated with him again, after the assault.

DR says that the complainant had even corrected a reference to an "angry email" by changing it to "an email sent in anger" during the examination-in-chief, thus massaging, though still deliberately falsifying the character of her communication with Ghomeshi, under oath, on the witness stand. This was prior to the revealing of the true nature of those emails by the defense.

DR says the main issue with this witness is lies under oath about the nature of her relationship with Ghomeshi after the alleged assault. Says her evidence is not reliable.

More to come.

a reply to: ipsedixit

Says that complainant couldn't recall her answer when Ghomeshi asked her "do you like this?" during the encounter in question and says that this undercuts any assertion of absence of consent and even raises the question of whether the events as described occurred at all.

If only Ghomeshi had asked these women if they liked being assaulted before the acts were committed, he would not be in this predicament. I would have liked to see an expert on abuse take the stand to bring to light the complex psychology of abuse.

In closing arguments at the Ghomeshi trial, Callaghan said: "All three Crown witnesses were unshaken in their allegations that they were sexually assaulted by Mr. Ghomeshi.”

Ghomeshi has another sexual assault case this coming June.

DR on the third complainant:

Says that complainant read media stories about the case and though she told the Crown that she did not speak about the specifics of their allegations, later admitted under cross examination that she and DeCouture had discussed them.

Says that the complainant and DeCoutere shared a publicist and a lawyer. Says complainant told DeCoutere to "lead the pack". Said judge should be mindful of complainant's animus toward Ghomeshi.

Says that complainant told DeCoutere that she would do anything to put Ghomeshi where he belonged. Says even the Crown cited the importance of impartiality.

Says complainant's account of the alleged assault is not clear. Hard to figure out what happened on the bench where incident is alleged to have taken place.

Says animus of two complainants should be considered. DeCouture said she wanted to "sink that prick".

Says that the complainant testified that "I didn't really feel there is andything to press charges against" being the reason she didn't report to the police at the time.

Says complainant testified that she only wanted to remain in public with Ghomeshi and kept her distance, yet emailed him saying "still want to have a drink sometime?", characterizing that message as "professional" in nature.

Says her email language to Ghomeshi was the opposite to the attitude to him that she expressed to DeCouture.

Says complainant's evidence can be explained by DeCoutere's intervention.

Says complainant omitted disclosing her sexual interaction with Ghomeshi until after DeCoutere's testimony.

Says that the chronology here is significant toward undermining credibility of complainant. Says that complainant only disclosed the sexual encounter to the police after media report of (DeCouture's?) cross examination.

Says witness did not consider a hand job sex and says complainant later admitted she deliberately misled the police, saying her interactions with Ghomeshi after the alleged assault were in public, gave dates, but was lying.

Says the point is not the sexual interaction after the alleged assault but her lies under oath, to police.

DR on Lucy DeCoutere:

Says judge should be concerned whether DeCoutere is acting in good faith in the proceedings. Says that her friend Dunworth's testimony that DeCouture told her that she wasn't really into Ghomeshi and that the choking sealed the deal need to be put into context with a love letter and email communications with the accused that are of a different, opposite character.

Says DeCoutere's motivation was inconsistent.

Says DeCoutere told the third complainant that she was ready to take on the trial and media attention, was looking forward to the trial as "theatre at its best".

Says complainant described kissing after the alleged assault but had rejected advances on the way to the house.

Says complainant concealed other times that she had seen and kissed Ghomeshi. Says complainant didn't tell police about the kissing and didn't think it consequential. DR cited evidence of caring for Ghomeshi, roses, cheese, closet.

Says complainant altered her story from what she told police a jumbled sequence of events, to what she said in examination-in-chief, two slaps a pause and then a slap.

Says she told police, under oath, that she didn't pursue any type of romantic relationship with Ghomeshi after the alleged assault.

Says complainaint said everyone knew she didn't like Ghomeshi.

Says complainant changed her statement to police to include post incident contact, just before she testified in court. Told police about sending flowers, emails, seeing him in Banff the next year as attempts to "normalize" the situation.

Says DeCouture's evidence evolves according to what she is confronted with.

Says DeCoutere said that Ghomeshi touched her neck at the Geminis to refer to the choking but didn't say that she tried to set up time to meet at that period. Tried to explain it away by saying she meant see him on TV. Says she only hung out with him in Banff because she was concerned he didn't have anyone to be with even though he said he was busy. This is contrasted with her email messages to Ghomeshi.

Says DeCouture only admitted to wanting a friendship with Ghomeshi when her emails to him were disclosed. Urges judge to consider this pattern of disclosure and concealment. Says emails after the alleged assault indicate she wanted to see Ghomeshi.

Says complainant only concedes to being "conflicted" about Ghomeshi when confronted with love letter she sent to him.

Says emails and letter are at the heart of the issue of consent and whether the events occurred as described in the allegations.

Says one email sent 13 days after the assault read in part, "I think you are magic and I'd love to see you." Says those are her contemporaneous feelings in the aftermath of the alleged assault.

Another email reads in part, "you kicked my ass last night and it makes me want to # your brains out. Tonight."

Says the email goes to the issue of consent. Email says, "I love your hands."

Says, in relation to the assault, DeCoutere wrote, "I am sad we didn't spend the night together." Says the love letter in itself is relevant simply for its existence in the context.

Says the communications and the obvious interest in Ghomeshi go directly to the issue of consent in question.

Next: Henein on the law.

Marie Henein on issues of law:

MH asserts the standard of reasonable doubt and the presumption of innocence. (My note: Strangely, this is not done in Latin.)

Refers to famous cases of wrongful conviction, importance of avoiding wrongful conviction and obligation of Crown to prove beyond reasonable doubt.

Notes that Crown did not refer to charge of overcome resistance by choking in closing. Says that this activity must meet the standard of rendering a person incapable of resistance and that this was not met in the allegation.

Says that the offense is very specific. Choking must render the victim "insensible, unconscious or incapable of resistance" and that the intent must be to commit a further crime.

Says that DeCouture said she was not resisting and that even if her story is believed, such a chokingwas not used to render her incapable of resistance.

Says that elements required for the choking charge were clearly not met.

Cites case law to assert that Crown must prove absence of consent beyond reasonable doubt.

Says that DeCouture was not resisting and that the sequence of events, kissing, choking, slapping does not meet the standard for the charge of choking overcome resistance. Choking was not used in aid of another offense.

Says that the accused can use the complainant's words and actions at the time of the alleged assault to determine if there was consent.

Says that court must take all circumstances into account in determining credibility and reliability of complainants' testimony.

Says the burden has not been met.

Says, that repeating the same statement over and over does not indicate credibility or reliability. Cites case law. (My note: Going to Crown reference to "steadfast" testimony of complainants?)

Says, referencing corroboration, that attendance at a Play episode, remembered by a complainant, is not corroboration of an allegation of sexual assault.

Referencing "steadfast" complainants, MH says that witnesses never recant on the stand. She has never seen it in 24 years of practicing law.

Notes that the complainants withheld information from many, including the court and only disclosed the truth when they were concerned that they would be contradicted by objective evidence. (My note: emails)

MH says that is deeply troubling and remarks that if the truth were not available independently we would not have heard it at all.

Says that explanations of why contact was made, to bait him, were not believable.

MH asks the judge to focus on the lies under oath. Accepts that women will continue to interact with abusers and that the issue has been dealt with in the Supreme Court of Canada. This is not the defense's issue.

Says that DeCouture says she had "distant but cordial" relations with the accused. This is not true.

Says that the lies under oath are the issue and have nothing to do with understanding the intricacies of law relating to sexual assault (My note: referencing DeCoutere's "broken and raped" standard for a sexual assault complaint?)

MH says that during the examination-in-chief, under oath, the truth was not told.

Says the court should not rely on witnesses who decide for themselves what is relevant and only tell half truths. How did the truth come out? Courtroom should not be a game of chicken.

MH on fundamental principles of criminal justice. Inconsistencies on small matters are normal, but on material issues (My note: issues of legal consequence) such inconsistencies can show a "carelessness with the truth".

Quotes a novel: "truth is often found between the lies".

Says court's focus must be on scrutiny of the content of testimony.

MH says expert evidence would be inadmissible in this case because understanding of the behavior of women in long term abusive relationships has nothing to do with the kind of relationships that were the psychological venue of this case.

MH Quotes Madame Justice L'Hereux-Dubé: No prior existing relationship, incident occurred on first date, no fianancial dependence, no power imbalance, etc.

MH says that no expert would testify that perjury is indicative of trauma. Suggests a witness perjured herself.

Remarks that DeCoutere remembered her feelings very well, but not her emails.

The complainants did not testify forthrightly and therefore presented testimony that couldn't be evaluated properly.

Says they should not be allowed to take refuge in "victim behavior" as an explanation for faluts in their testimony.

MH says that a similar fact application would not have been allowed in this case, given indications of collusion.

(My note: this is something that troubles me and which will be addressed later.)

MH says that evidence of collusion was extensive.

Urges judge not to give in to public pressure in such a mediatized case, attended by strong emotional involvement from the public. Cites Supreme Court of Canada. Judgment must be based on facts, not emotions.

Says Ghomeshi is not guilty, case is riddled with lies under oath and inconsistencies. Accused should be acquitted on all counts.

Crown replies briefly. Says consent can not be given by conduct after-the-fact. Only the complainant can give consent.

Crown says that Dunworth's statement does not show collusion, only a friend's support. Says that collusion allegation is weakened if DeCoutere told third complainant about assault 10 years prior to the laying of charges.

Crown cautions judge about taking the emails at face value, saying witnesses may not have meant what they wrote.

This is a high profile case, obviously, and in addition to that, there is a tremendous amount of money at stake in the case, related to potential lawsuits that could come in the wake of a "not guilty" verdict. Jian Ghomeshi had filed suit against the Canadian Broadcasting Corporation to the tune of $50,000,000.

To some extent the practices of the Toronto Metropolitain Police Department also come under scrutiny in this case, since a police spokesperson indicated, prior even to the laying of charges that allegations against Mr. Ghomeshi, who was named by the police, were believed.

In view of that and in view of the very controversial case involving former Attorney General Michael Bryant, who had charges against him dropped in circumstances that I personally regard as an outrageous travesty of justice, I determined to give the Ghomeshi case very careful scrutiny.

More to come.

Verdict just in: Ghomeshi not guilty on all charges.

I'm shocked. I was wrong. I expected a guilty verdict and had serious apprehensions about Marie Henein's strategy in the case.

I am so relieved to see that my worst fears about justice in Toronto have not be realized. I'm happy to look like a fool in the process.

I still think the Bryant case stinks to high heaven, but good for Henein and her team. I think Justice Horkins's judgement is strongly reflective of the damage that the complainants did to themselves. Henein simply made it obvious to the court.

Henein's quotation, given during her summation probably goes to the heart of the matter, about the truth being somewhere "between the lies".

The following is a link to Justice Horkins' judgement:

www.ontariocourts.ca...

I expected him to get off because of suspected collusion and that most people remain uneducated about the complexities of behaviours related to being abused. I still think the Crown should have had an expert witness on abuse available to explain to everyone why certain actions and behaviours happened, and I wanted Ghomeshi to be cross-examined. He had a very smart lawyer.

The crown did not do it's job in preparing it's witnesses, after hearing of the follow up emails to him after the assaults(I want to f your brains out..as an example) I don't think it could of gone any other way. No doubt he is a scumbag though.

originally posted by: vonclod
The crown did not do it's job in preparing it's witnesses, after hearing of the follow up emails to him after the assaults(I want to f your brains out..as an example) I don't think it could of gone any other way. No doubt he is a scumbag though.

No doubt, and why was he allowed to decide if the trial is judge only opposed to jury, and why is he allowed to forgo being cross-examined? Why do the plaintiffs have no say in these decisions? I believe if it were a trial by jury with an abuse expert educating people, the verdict would have been the opposite.

a reply to: InTheLight

The Crown did not call an expert to give testimony and Henein said that such testimony would not have been admitted because these were short term relationships unlike the sort of relationships that experts specialize in.

My own ATS style conspiracy concern was that Ghomeshi would be convicted as a result of a flawed defense strategy on Henein's part, i.e., opting for a "summary" proceeding that combined three sets of allegations into one trial, when it was her option not to do so, thereby allowing "similar fact" evidence into the proceeding by the side door, so to speak.

originally posted by: InTheLight
No doubt, and why was he allowed to decide if the trial is judge only opposed to jury, and why is he allowed to forgo being cross-examined? Why do the plaintiffs have no say in these decisions? I believe if it were a trial by jury with an abuse expert educating people, the verdict would have been the opposite.

Why can't you accept that the witnesses brought this upon themselves?

We don't need to modify Canadian law to suit witness stupidity.

originally posted by: peck420

originally posted by: InTheLight
No doubt, and why was he allowed to decide if the trial is judge only opposed to jury, and why is he allowed to forgo being cross-examined? Why do the plaintiffs have no say in these decisions? I believe if it were a trial by jury with an abuse expert educating people, the verdict would have been the opposite.

Why can't you accept that the witnesses brought this upon themselves?

We don't need to modify Canadian law to suit witness stupidity.

This has to so with a lack of education in the matter of abuse as is evidenced from tis trial. We certainly do need to identify problems within this process and fix it, because it is broken.

Victims of sexual assault don’t always behave the way we think they ought to. They make their rapists breakfast and send flirty texts and accept dinner invitations from men who have previously hurt them. Many victims love or are infatuated with their attackers; others just want to pretend that the abuse never happened.

So while the court must assess the credibility of the person making a complaint – especially if it’s serious and the defendant denies it – it’s important to remember that there is no one right way for a victim to behave, before, during or after an assault.

www.theglobeandmail.com...

I hope the Crown gets it right in his June trial and the other 13+ women claiming he abused them too, will come forward.

www.cbc.ca...

www.cbc.ca...

A dismal record.

originally posted by: ipsedixit
a reply to: InTheLight

The Crown did not call an expert to give testimony and Henein said that such testimony would not have been admitted because these were short term relationships unlike the sort of relationships that experts specialize in.

My own ATS style conspiracy concern was that Ghomeshi would be convicted as a result of a flawed defense strategy on Henein's part, i.e., opting for a "summary" proceeding that combined three sets of allegations into one trial, when it was her option not to do so, thereby allowing "similar fact" evidence into the proceeding by the side door, so to speak.

I would rather an expert in the field relay that as fact instead of an attorney, and who bothered to corroborate that as fact? Certainly not the Crown nor the judge, right?

a reply to: InTheLight
Save your sexism for those that can't see through your BS.

Canada absolutely does not need to change our laws to guarantee success in court based on your gender.

Accusers that lie find it difficult to get convictions...shock value, zero. Changes required = zero.

Everybody involved in this case, on the accusers side, did everything to the best of their ability. The only ones who did not were the accusers themselves.

a reply to: InTheLight

You are right and as one of the Crowns pointed out, we are within the 30 day appeal limit. The Crown could appeal.

I haven't finished reading Judge Horkins' judgment, but I think that but for the incredible behavior of the complainants in this case, there would have been a conviction. The complainants snatched defeat from the jaws of victory because they tried to tip toe through the muck and their own folly without getting smudged.

originally posted by: ipsedixit
a reply to: InTheLight

You are right and as one of the Crowns pointed out, we are within the 30 day appeal limit. The Crown could appeal.

I haven't finished reading Judge Horkins' judgment, but I think that but for the incredible behavior of the complainants in this case, there would have been a conviction. The complainants snatched defeat from the jaws of victory because they tried to tip toe through the muck and their own folly without getting smudged.

I agree, they had little to no assistance traversing the muck.

www.thestar.com...

ca.news.yahoo.com...

a reply to: InTheLight

It's possible that some of the charges would not have been filed if the police had been fully informed by the complainants. I'm wondering if the charges slated to be heard in the next trial will be dropped, actually, if they include similar patterns of fraternization with the accused after the alleged offense.

Even Lucy DeCoutere acknowledged that her behavior looked bizarre.

Women need to adopt a zero tolerance policy for violence on themselves. One strike and you are out.

a reply to: ipsedixit

I don't think the next trial has, or should even be assumed, anything in common with this trial. It is a 100% separate incident, and will stand or fall on it's own merits.

That aside, there are some rumors floating around that the next case is much more evidence based, far less testimonial based.

a reply to: ipsedixit

Walk a mile in their shoes.