Three criminal defence lawyers explain the past few days of the Jian Ghomeshi trial

Rahamim: The speed at which this trial is going. Tomorrow is the second day of the second week, and the case is over, essentially. I think this is by design. Things could not be going better for Mr. Ghomeshi. It seems like the Crown is cutting their losses at this point in time, and I don’t think the defence is going to have any problem with that.

Kerbel: I was struck by the extent of the communication between Ms. DeCoutere and the third complainant. It was something like 5,000 texts and emails that they had exchanged, which I think seriously compromises the independence of their evidence. Also important on that point is that the third complainant, when initially asked, said that she hadn’t discussed the allegations with DeCoutere. I think that that kind of evidence is a goldmine for the defence.

Stewart: I think a lot has been made about the post-assault conduct of the witnesses. For me, the issue isn’t that the witnesses had contact with Mr. Ghomeshi after the alleged assault, but that they didn’t disclose the full context of their relationship with Mr. Ghomeshi to police and the Crown. I think the defence is highlighting the fact that these complainants didn’t tell the whole story.

Stewart: The Crown has an obligation to disclose any relevant information it has in its control to the defence. This includes anything that hurts or helps the accused. The right to disclosure derives from the constitutional right to full answer and defence. The accused does not have a reciprocal obligation to disclose information to the Crown, except in really limited circumstances which aren’t relevant here.

Kerbel: That’s true. They don’t have to make disclosure. There is no obligation on the accused to assist in the investigation of a crime or its prosecution. That’s very important in a criminal justice system, because you don’t want situations where people who have been accused of a crime are compelled to supply evidence against themselves. There is no obligation on the accused to testify, there’s no obligation on the accused to speak to the police, and there’s no obligation on the accused—except in very limited circumstances—to provide the Crown with evidence.

Rahamim: What Zach is talking about is very much premised on the philosophy that there is a fundamental imbalance in the justice system between the Crown and the police, who have nearly unlimited resources to investigate and then prosecute a case, and an accused person, who is one person hiring one lawyer to do a job. In order to level the playing field, the Crown must disclose everything that they have.

Kerbel: There are three other ideas I think are related to the notion that the defence doesn’t have any obligation to produce anything to the Crown. First, there’s the right to remain silent. The second one is that the Crown is not what they call an “ordinary litigant.” The Crown isn’t there to secure a conviction at all costs; it’s there to present evidence in a quasi-ministerial fashion, so that the court can get at the truth. The third is the idea that the burden of proof always rests with the Crown. There’s never any obligation on the defence to prove anything in a criminal trial, and correspondingly there’s no obligation on them to produce any evidence.

Stewart: In rare circumstances, the defence will make a tactical decision to show its hand to the Crown if they think they can resolve the case by doing so. Marie Henein famously did this in the Michael Bryant case.

Rahamim: Absolutely not. When it comes to disclosing this kind of information, unless you really think that it’s going to sway the Crown to withdraw the charges, you don’t do it. I agree with the strategy. If the very witnesses that the prosecution is basing its case on are not disclosing information to the police and the Crown, then why should Ms. Henein?

Kerbel: It’s risky to turn over to the Crown whatever evidence you’re going to use to potentially impeach their witnesses, because they may not withdraw the charges.

Kerbel: Theoretically, if the Crown had the requisite reasonable and probable grounds, they might have been able to obtain a production order. But it’s pretty uncommon in these cases for them to do that.

Rahamim: Let’s just recalibrate for a second here. In order for the judge to convict Mr. Ghomeshi, the Crown has to establish this case beyond a reasonable doubt, which is a very high standard of proof. It’s close to absolute certainty. If the judge believes the three complainants enough to believe that their evidence was credible and reliable, then he can convict Mr. Ghomeshi. There’s nothing that Mr. Ghomeshi has to prove in order to establish his innocence; it’s the other way around.

Stewart: I think that all Henein’s efforts are about chipping away at the Crown’s case. Does the fact that Ms. DeCoutere sent Mr. Ghomeshi a love letter after the assault mean that she wasn’t assaulted? Of course not. But does it raise doubt? That’s the question the judge is asking.

Kerbel: You raise the collusion issue, and I think that’s important. The Crown said early on in the case that they were contemplating bringing a “similar fact” application at the end of the trial. What that means is that the Crown, at the end of the trial, would like to go to the judge and say, “Judge, what are the chances of three different people coming forward and making very similar allegations against Mr. Ghomeshi if they aren’t telling the truth?” The Crown would say that can’t be a coincidence. The problem the Crown has with that argument now is that at least one of the complainants has admitted discussing the details of the allegations with one of the other complainants. That may make it very difficult for the Crown to succeed, because it provides an alternative explanation for the similarities in those two accusations.

Stewart: It’s not unusual that they would want to reach out to each other for support, so the judge will have to consider both inferences.

Rahamim: It’s also not unusual for them to have some sort of animus toward the person who allegedly did this to them. We see that in this case, in the tone and nature of the third complainant’s conversations with Ms. DeCoutere—conversations where they are demeaning Mr. Ghomeshi, calling him “the Arabian princess” and talking about making the cover of Vanity Fair. I think that speaks to a different kind of motive to their communication.

Stewart: But again, that can cut both ways. DeCoutere could simply have been excited that her efforts to prevent violence against women were getting media exposure.

Stewart: We haven’t heard any expert evidence on this topic at the trial, but the law recognizes that there’s no “normal” behaviour for victims of sexual assault. We now know the dangers associated with relying on sexist myths and stereotypes, like the notion that sexual assault complainants should report to the police right away. There’s no one way that complainants should act.

In my experience, it’s relatively common for complainants in both domestic and sexual assault cases to stay in close contact with their alleged abusers, particularly where there is a dependent or a familial relationship. I think that it’s clear from Ms. Henein’s cross-examination that she’s trying to highlight that these women were not in dependent relationships with Mr. Ghomeshi.

Rahamim: What I think is unique to this case is that none of these three complainants were forthright with the police or the Crown. You have to separate that from the myths of sexual assault complainants behaving in a particular way.

Kerbel: I think it’s important to clarify why that witness is being called. If the press reports are accurate, this is a witness who will testify that Ms. DeCoutere made the same or similar allegations against Mr. Ghomeshi something like 10 years ago. Generally speaking, that kind of evidence is inadmissible. It’s called a “prior consistent statement.” It can become admissible in cases where the defence has explicitly or implicitly made an allegation of “recent fabrication.” What that means is that the defence has suggested to a complainant or a witness that circumstances arose after the alleged incident which gave them motivation to fabricate the allegation. In those limited circumstances, the prior statement can be admitted for the sole and limited purpose of neutralizing that alleged motive. It can’t be used to bolster a witness’s credibility directly.

Stewart: The reason prior consistent statements are typically inadmissible is that they’re seen as being self-serving. You can say a lie a million times just as easily as you can say the truth a million times.

Rahamim: We’re lawyers, so we hate to give you definitive answers. But, at the risk of ostracizing myself from the legal community, I think he’s going to be acquitted.

Kerbel: We’re still waiting on the evidence of a fourth witness, so in some ways it’s premature to say. I think the defence has raised a lot of problems with the Crown’s case, and it seems to me that Ghomeshi has, at minimum, a very good fighting chance of acquittal. If you put a gun to my head, I would say acquittal.

Stewart: I think beyond a reasonable doubt is a very, very high threshold, as it should be. If there was a gun to my head, I’d say he would be acquitted. But I think the best thing that could come out of this case has already happened. It has created a national discourse about violence against women, and about the experience of women in the justice system. I think whether Mr. Ghomeshi is convicted or acquitted, it won’t take away from that.