Ghomeshi Day 8: The defence’s dramatic, deft close

Final arguments in the Jian Ghomeshi trial made it clear: Ghomeshi wasn’t the only one on trial. So was the Canadian judicial system.
Marie Henein, the lawyer representing former CBC radio host Jian Ghomeshi, arrives at a Toronto court for day six of his trial on Tuesday, Feb. 9, 2016. (Chris Young/CP)

Those who braved Thursday’s bitter cold to line up for closing arguments in R. v. Ghomeshi were rewarded with a spectacle of legal footwork by the defence team so deft some of it was destined to have gone unnoticed. In her submission to Ontario Court Justice William Horkins, Marie Henein made it clear Jian Ghomeshi was not the only one on trial. No. So were the three complainants, as the defence outlined in its 92-minute final submission. Even more, the Canadian judicial system itself was being assessed, which meant any verdict the judge rendered would have profound systemic implications: “High-profile trials by their nature attract strong public emotions,” Henein said, reading from a Supreme Court of Canada decision. “It is especially in high-profile cases where the justice system will be on display. The counsel must do their utmost to ensure that the outcomes of these cases are built on facts and not on emotions.”

In her final submission, Henein shifted focus from Ghomeshi, who has pleaded not guilty to four counts of sexual assault and one count of “overcoming resistance by choking,” to the ways the three complainants imperilled judicial due process by withholding information from the police and Crown attorneys and, more significantly, lying before the court.

“The extraordinary fact of this case is that all three complainants withheld information from police, from the Crown and most importantly from the court in the course of their testimony,” Henein said. “And they didn’t do it because, as we have heard in many, many cases—and judges routinely accept these explanations—’I forgot’ or wasn’t focusing on that aspect. Eleventh-hour disclosures only came when the witnesses were concerned they’d be confronted with objective evidence, their own words.”

Closing submissions from Henein and co-counsel Danielle Robitaille followed those by Crown prosecutor Michael Callaghan. His 49-minute address, at times, felt like watching a ship’s captain trying to right a vessel already underwater—patching up holes while searching for a prow on which to stand and salute. He pointed out the complainants were  “unwavering” in their testimony that they hadn’t given consent to Ghomeshi. Citing case law, he noted the “credibility” of Ghomeshi’s accusers has nothing to do with the way they behaved after the alleged incidents, since the law is clear that everyone responds differently to sexual assault. Credibility is different than reliability, he said: the judge can accept some parts of evidence and testimony but reject others. After saying law is “outdated” regarding late disclosure in sexual assault cases, which is the norm, he explained why the complainants delayed reporting to police. The first complainant didn’t go to police immediately because she didn’t think her allegations were serious enough, he said, and was concerned she wouldn’t be believed; she felt she could come forward only after a police press conference asking women to do so. Lucy DeCoutere, the one complainant to waive a publication ban on her name, believed one had to be “broken and raped” to press charges, he said. DeCoutere stayed with Ghomeshi after the alleged assault, Callaghan told the judge, because she “wanted to normalize” the situation because she worked in the same industry; she “was a people pleaser” and “wanted to seem cosmopolitan in his eyes.” The third complainant came forward when she realized her experience wasn’t an isolated incident after other women reported being sexually assaulted by Ghomeshi, in media coverage. The fact two witnesses communicated is not tantamount to collusion, Callaghan said: it was “an informal support network.”

As all unfolded, the three complainants sat in the front row of the gallery surrounded by family and friends. They watched the defence tell the judge the Crown failed to prove beyond a reasonable doubt Ghomeshi committed the crimes of which he was accused, then defence rolled through trial highlights, a “K-Tel’s greatest hits” of the many explosive revelations that punctuated the previous eight days. The court was reminded of how the first witness, who testified under oath that hearing Ghomeshi’s voice “traumatized her,” sent him images of herself in a bathing suit as “bait” in order to speak with him; it was told again how Lucy DeCoutere, who avowed she had no romantic interest in the former CBC host, sent an email expressing desire to “f–k his brains out.” Such inconsistencies rock the foundation of our judicial system, Henein reminded the judge: “If a careless disregard for truth prevailed in the courtrooms the public trust in the judicial functions, the law and the administration of justice would disappear.” Those words came from a decision rendered by former Supreme Court of Canada judge Claire L’Heureux-Dubé, Henein reminded the court—”The words of one of the most significant feminist jurists in this country,” she said, emphasizing the word “feminist.”

Henein also emphasized the vital importance of the criminal trial process in ferreting out truth, citing American jurist John Wigmore: “that the greatest legal engine ever invented in the discovery of truth is the trial” (Wigmore wrote: “to submit to cross-examination, the ‘greatest legal engine ever invented for the discovery of truth.’ “) An allegation is not true until tested in court, Henein said: “It is not proven by tweets and press releases,” she said, against the clickety-clack of a gallery live-tweeting the proceedings. Yet, as closing arguments proved, Henein herself is well-schooled in the 140-character sound bite. “This courtroom should not be a game of chicken,” she told the judge, referring to relying on witnesses “who will decide for themselves what is and is not relevant.” At another point she quoted a line from a novel whose author she didn’t name: “The truth is often found between the lies.” There was clearly a bit of subtle judge flattery going on: “The absence or presence of detail not a badge of credibility,” Henein said. “No one size fits all. It’s up to the judge.”

Henein also suggested the complainants were exploiting the knowledge that trauma routinely accompanies sexual assault to justify misleading the court. “We know, and this is not news, that in certain circumstances, women will continue to interact with people who abused them,” Henein said. “That’s not in play here.” Here the witnesses used trauma as an excuse, she said: “The first witness told police ‘I was so traumatized that in response to this traumatic incidence I did not interact with him again.’ It is not true,” she said, adding: “What a witness cannot do is lie about their conduct and then say, ‘Oh geez, that’s just how victims of trauma behave.’ ” She also tried to deflect any criticism that her cross-examination entailed retrograde blame-the-victim tactics: Cross-examining a witness for discrepancies in testimony “is not the same as putting to a witness, ‘Why did you continue to communicate with him?’ ” she said. She then stepped into the vacuum created by the fact no expert witnesses testimony was called when she offered what one would have said, had an expert witness on trauma been called: “There is not an expert who will come and testify that perjury is indicative of trauma.”

The focus of the defence’s closing arguments pointed to areas where they felt they might be vulnerable. Robitaille spent close to an hour undermining witnesses’ credibility and reliability, spending the most time on the first witness, a woman who met Ghomeshi in December 2002 when she was at a Christmas party; she accused him of yanking her head back and, on another occasion, of punching her. In court it was revealed she communicated with Ghomeshi via email after saying she did not. Robitaille pointed out discrepancies in versions the witness told the media and the court and directed the judge to the “part some of us might have missed”—that the witness said “I remember reading these” under cross-examination. This reveals she knew about the emails before she hit the witness box, Robitaille said: She “let it slip she reviewed them.” The lawyer also hammered the third witness for “colluding” with Lucy DeCoutere in 5,000 messages between them over less than a year. The third witness said they didn’t speak of specifics of the case, but under cross-examination admitted that they did. Henein also argued the “choking to overcome resistance” charge, which has a potential maximum of life in prison, did not meet the legal test in this case.  It’s “very specific,” Henein said: “Not only must the accused render them ‘insensible, unconscious or incapable of resistance’ but have choked someone by way of  ‘a specific intent to commit an indictable offense such as robbery or assault.’ ”

Robitaille ended her submission by referencing DeCoutere’s now-infamous handwritten “love letter” to Ghomeshi, whose “I love your hands. Lucy” sign-off drew gasps from the gallery. The “love letter” is relevant, Robitaille told the judge. “What is more relevant, what is central to your consideration on the question of whether or not the Crown has proven non-consent beyond reasonable doubt is this witness avowed interest in Mr. Ghomeshi, sexual interest, and her disappointment that they did not have sex, did not spend the night together, is central to your consideration.” After the defence submission ended, Callaghan stood to counter some claims, though not the criticism of the validity of the “overcoming resistance to choking” charge. He focused on consent, specifically whether the judge should  see a letter written after an alleged attack providing a retroactive green light, contrary to law: “The court has to caution itself that after-the-fact evidence doesn’t mean consent was obtained,” he said.

The session ended with Justice Horkins, who appeared to be taking more notes while listening to Henein than to Callaghan, announcing his verdict would be read on March 24 in the same courtroom. That’s a judicious timeframe. But had he said he would be ready to rule after lunch, no one would have been a bit surprised.