It was one of the few wry moments in an otherwise tense and dramatic trial. After all three of the complainants in Jian Ghomeshi’s sexual-assault case had been heard, the Crown wanted to submit evidence from Sarah Dunsworth, a friend of Lucy DeCoutere who might corroborate her testimony.
Arguing against the admissibility of the evidence, co-counsel for the defence Danielle Robitaille reminded Justice William Horkins that, in some cases being heard by a jury, “there is a heightened concern that a jury will be confused about a certain line of cross-examination.” The judge, an 18-year veteran of the Ontario Court of Justice, looked out at Ms. Robitaille through his square black glasses and gave an almost imperceptible smile. “The jury might be confused by it. I won’t be confused by it,” he said, in allowing the evidence.
On Thursday, after almost two weeks of the spotlight resting on Mr. Ghomeshi, his lead defence counsel, Marie Henein, and Crown attorney Michael Callaghan, it shifted to Justice Horkins, who announced that he was reserving judgment until March 24.
For those looking for early clues on how he might rule, his background as a trial lawyer, along with his decisions in a few prominent cases, may hint at his thinking in R. v Ghomeshi.
Justice Horkins is no stranger to the kind of attention this case has brought. In 1983, only three years after passing the bar, his name landed in the papers when, as a young defence lawyer, he used a Charter of Rights and Freedoms argument before the Ontario Court of Appeal on behalf of accused Nazi war criminal Albert Helmut Rauca, who was fighting extradition to Germany.
Since being named to the bench in 1998, Justice Horkins has cited the Charter a number of times. In 2010, he brought attention to the lack of resources in the Ontario criminal justice system when he threw out an assault charge against a nursing-home employee because the case had taken 20 months to come before him, a delay he said flirted with the outer limits of what is allowable under the Charter.
He cited the Charter again three years ago in another closely watched case, when he declared the police practice of carding – conducting random street checks on people without a reasonable suspicion of an offence – to be unconstitutional. (Still, he permitted a gun seized during a check to be used as evidence despite saying that carding flies “close to the flame of Charter offensiveness.”)
In 2008, Justice Horkins heard a troubling case in which a woman in her 20s alleged that, while she was sleeping at a friend’s house, her friend’s older brother sexually assaulted her while others, including his wife, slept nearby.
“I found the complainant to be an articulate and forthright witness,” Justice Horkins wrote in his decision. He also noted: “The version of events given by the accused and his supporting witnesses quite frankly, and very bluntly, strike me as somewhat incredible.”
Still, he acquitted the defendant because “reasonable doubt” had arisen due to conflicting testimony.
His conclusion may give a hint of what he is considering in the matter of R. v Ghomeshi.
“At the end of a properly conducted criminal trial, where the evidence has been put in at its highest by skillful counsel, such as at this trial, it is very often impossible to confidently declare that the truth has clearly been discovered and the allegations resolved one way or the other. This is one of those trials. I am afraid that I am left in a state of great uncertainty as to where the truth lies in this case and this is a classic form of reasonable doubt,” he wrote.
“When one considers the grave consequences of being wrongfully convicted of an offence such as this, one can understand why nothing less than proof beyond reasonable doubt can be accepted as the foundation of a criminal conviction.”
Justice Horkins was praised by Christophe Preobrazenski, who was the defendant’s lawyer. “What is really most interesting is how Horkins approached the evidence,” he told The Globe and Mail. “He’s a smart judge. He has wide reasonable doubt, as you should. That’s what the presumption of innocence is all about. He appreciates what reasonable doubt is all about, which some judges don’t. He truly is a good judge in the sense that he listens to everyone.”
With reports from Sean Fine and Stephanie ChambersReport Typo/Error