In Jian Ghomeshi's trial for sexual assault and overcoming resistance by choking, the Crown presented three primary witnesses who alleged the former CBC host beat them during intimate moments. But while their stories all differed slightly, the defence strategy was the same: Catch the women in verbal inconsistencies, accuse them of lying and question their motivations for coming forward so long after the alleged incidents.
On the sixth day of the trial, the defence signalled that it would not even need to mount a case before closing submissions.
Mr. Ghomeshi's lead defence counsel, Marie Henein, began her work quickly: On the very first day of the trial, she peppered the first witness with sharp questions about the different accounts of the alleged assaults that she had given to authorities and media. Ms. Henein accused the woman, whose identity is protected by a publication ban, of lying. "I did not lie," the woman replied. "That's how I am with memories – that's how most people are. The longer you sit with the memory, the more clear."
But the woman's memories appeared fallible the next day. She had insisted she was so traumatized by the assault that she never again communicated with Mr. Ghomeshi. But Ms. Henein produced two e-mails the woman had sent him more than a year after the incident, including one that contained a photograph of herself in a red bikini.
Days later, Ms. Henein used a similar tactic while cross-examining Lucy DeCoutere, the second complainant, who alleged Mr. Ghomeshi choked her to the point that she could not breathe. Ms. Henein hammered away at the third witness, who appeared on Monday of this week, for disclosing to police only late last week that she had an intimate sexual encounter with Mr. Ghomeshi after she says he assaulted her.
Crown counsels Michael Callaghan and Corie Langdon seemed caught off-guard by the bikini picture, e-mail exchanges between Ms. DeCoutere and Mr. Ghomeshi in the weeks and months after he allegedly assaulted her and a flowery, six-page handwritten letter she sent him days after she alleges he choked her, which concluded, "I love your hands." In Canadian law, only the defence has the benefit of disclosure: The Crown must hand to the defence any relevant documents it obtains, but the defence is not required to return the favour.
And the defence is not required to put the man at the centre of the allegations in the witness box. Those who were hoping to hear Mr. Ghomeshi defend himself will go home disappointed: After a statement from a final witness is submitted on Wednesday, the two sides are expected to make closing submissions on Thursday.
Henein: Do you agree with me at least, with these objective facts? When you said under oath that you didn't communicate with him, you now acknowledge you did?
Witness 1: I didn't remember I did this.
Henein: When you said under oath … that you have always remembered the trauma and you didn't want to communicate with him … that's why you stayed away – that's not true, right? Do you accept that?
Witness 1: No. … I did not want to see him. I did want him to e-mail me, I did want him to call me.
Henein: So you could hear the voice live and in person that you say you couldn't bear to hear?
Witness 1: May I explain, Your Honour? I wanted Jian to call me so that I could ask him why did he violently punch me in the head. And if I were just to e-mail and just say to him: "Hi, it's me, give me a call," I didn't think he would.
Henein: Is that your explanation under oath?
Witness 1: I wanted to talk to him. The e-mail was bait.
Gillian Hnatiw, counsel to Lucy DeCoutere, Feb. 5: This is and remains a trial about Mr. Ghomeshi's conduct. What Lucy did, and how she felt in the aftermath of the assault, does not change that essential fact. It is telling that the defence did not accuse her of dishonesty regarding the objective facts of the assault itself. She maintains her allegations, and remains resolute in her decision to come forward. And please be reminded, when these allegations against Mr. Ghomeshi first began to surface, he himself admitted that he does enjoy engaging in violence for sexual pleasure. Violence against women is not about the behaviour of the woman. It is not about how they cope with an assault, or the details they commit to memory in the aftermath. It's not about whether they see their abusers again, or send flowers, any more than it is about what they wore or how much they had to drink. Lucy wants survivors of violence to know that what they do in the aftermath when they are harmed in no way changes the truth. There is no right or wrong way to cope or react, or to move forward with your life.
Henein (referring to Ms. DeCoutere's police statement given in November, 2014, to Detective Ali Ansari and to photographs of Ms. DeCoutere and Mr. Ghomeshi together that were taken the day after the alleged assault): Det. Ansari begins, "I'd like ask you … to give as much detail as possible with regard to your relationship with Jian Ghomeshi – how it started, how it proceeded, the incident itself. In great detail, as much as you can remember." Do you recall Det. Ansari asking you to do that?
DeCoutere: I do.
Henein: You don't tell Det. Ansari about the cuddling in the park.
DeCoutere: I totally forgot about it.
Henein: But you remember what you had for dinner.
DeCoutere: I did.
Henein: … But you don't remember cuddling with the guy you say choked and slapped you?
DeCoutere: Memory is an interesting thing. I don't remember these photographs being taken. … I don't remember cuddling with him in the park. I guess because it clearly didn't leave an impression on me.
Henein: Is it possible, Ms. DeCoutere, that you will not remember it unless I show you and I can prove it? Is it possible you have a convenient memory?
DeCoutere: No, I don't have a convenient memory.
During cross-examination, Henein noted the third witness had not previously admitted to having a sexual encounter with Mr. Ghomeshi after the alleged attack.
Henein: You're conveying to [police] when [Mr. Ghomeshi] calls to ask you out: All right, but I'm going to stay in public with him.
Witness 3: Yup.
Henein: That's a lie, under oath, do you accept that?
Witness 3: I believe that's what I wanted it to be. …
Henein: All right. So do you agree that's a lie there, under oath, there, to the police?
Witness 3: It was an omission.
Henein: An omission? It's an omission when you say –
Witness 3: It's an embarrassing thing to say.
Henein: Sorry, I'm asking you what you tell police. You say to them, we are in public … but you accept that's a lie, right? You are not just in public with him.
Witness 3: I tried to stay in public with him, as best I could.
Henein: Well, it wasn't accidental!
Witness 3: No, it wasn't. It was a misjudgment, it was an absolute misjudgment, an embarrassing one and one that a lot of women make.
Henein: I don't care about "a lot of women."
ONE FINAL WITNESS
The judge at Jian Ghomeshi's sexual assault trial agreed Tuesday to look at evidence from one final witness the Crown wanted to call in the closely watched case.
Crown lawyer Michael Callaghan told court the witness would corroborate allegations made at the trial by Lucy DeCoutere, one of the three women who have accused the former broadcaster of sexual assault.
Ms. DeCoutere, known for her role on Trailer Park Boys, testified last week that Mr. Ghomeshi choked her and repeatedly slapped her while they were kissing in his bedroom in the summer of 2003.
Mr. Callaghan said the new witness – whose identity is protected by a publication ban – would put to rest allegations that Ms. DeCoutere fabricated the story to win notoriety and fame.
Mr. Ghomeshi's defence team, however, opposed calling the witness, saying Ms. DeCoutere's cross-examination showed the "the breadth and scope" of her dishonesty.
After weighing both arguments, Justice William Horkins ruled that the safest course was for him to hear the witness's evidence and then determine "any probative value it may have."
The witness, however, could not travel to Toronto to testify in person due to stormy weather in her hometown, so both the Crown and the defence agreed to present the judge with a transcript of the woman's statement to police as well as Facebook messages she exchanged with Ms. DeCoutere.
Mr. Ghomeshi has pleaded not guilty to four counts of sexual assault and one count of overcoming resistance by choking.
The 48-year-old former host of CBC Radio's Q acknowledged in 2014 that he engaged in rough sex acts, but said it was consensual.
The trial resumes on Wednesday, with closing submissions expected on Thursday.
- The Canadian Press