If the prosecution of Jian Ghomeshi ultimately goes to trial, one of the most important decisions a judge will make is whether the allegations of violent sexual assaults can be considered as a whole or only on an individual basis.
Mr. Ghomeshi is charged with four counts of sexual assault and one count of overcome resistance by choking. The charges involve three alleged victims, stemming from incidents between December, 2002, and July, 2003.
The prosecution is likely to bring what is known as a "similar fact" application at Mr. Ghomeshi's trial, legal observers say. If successful, it will bolster the evidence of each individual complainant because the Crown could argue there was a pattern to his behaviour. Otherwise, the testimony of each woman would have to be judged on its own.
Any ruling on whether to admit similar-fact evidence could determine whether Mr. Ghomeshi is convicted of any or all of the five criminal charges he is facing. As well, that two of the alleged victims spoke to the media, before giving statements to police, may end up assisting the defence of the former CBC radio host.
"Similar fact can be powerful evidence," said Peter Sankoff, a criminal law professor at the University of Alberta.
Two of the alleged victims provided their version of what happened to the Toronto Star before giving statements to police. Seven other women, whose accounts did not lead to charges against Mr. Ghomeshi, also spoke to the media and made allegations of violent conduct.
The media reports may open the door for the defence to argue that there was collusion, said Prof. Sankoff, who is also a co-author of a leading textbook on Canadian criminal law. "The fact it was in the paper is enough to raise the issue. There is no doubt the Crown would have preferred this was not aired in the media first."
Collusion can also occur through "inadvertent contamination," stated Ontario Superior Court Justice Renee Pomerance, in a ruling earlier this year where she acquitted a Windsor school teacher of sexual assault. "Witnesses, even if well meaning, might have been unwittingly affected by hearing the others' accounts," the judge wrote in explaining the legal principle.
It is still up to the defence, though, to show there was collusion, said Mr. Sankoff, and if there is independent evidence from the alleged victims that was not in the media, that will help the prosecution.
The leading Supreme Court of Canada decision on when separate bad-character evidence can be used together also involved the prosecution of a man alleged to engage in non-consensual violent sex, including choking.
The Supreme Court in its 2002 decision in R v. Handy concluded that evidence that the accused previously engaged in violent sex with his ex-wife could not be used against him on charges of sexually assaulting another woman. "Bad character is not an offence known to the law," wrote Justice Ian Binnie on behalf of the court. "The Crown is not entitled to ease its burden by stigmatizing the accused as a bad person," he added. However, the more focused and "specific to circumstances similar to the charge," the more likely the Crown will be successful, the court said.