In acquitting Jian Ghomeshi Thursday on four counts of sexual assault and one count of overcoming resistance by choking, Judge William B. Horkins reviewed the allegations and testimony of the three complainants who came forward nearly two years ago.

What follows are some of the Ontario Court judge's most notable comments from his 26-page decision.

You can read the full decision by clicking here

In outlining the case's context, Horkins noted that each charge "is based entirely on the evidence of the complainant. Given the nature of the allegations this is not unusual or surprising; however it is significant because, as a result, the judgment of this court depends entirely on an assessment of the credibility and the reliability of each complainant as a witness."

Jian Ghomeshi trial

Judge William B. Horkins, centre, reads his decision at the trial of Jian Ghomeshi, left, as Ghomeshi's lawyer, Marie Henein, right, looks on. (Pam Davies)

Complainant #1

When reviewing the testimony from the first complainant, Horkins said her memory of Ghomeshi's car as a bright yellow Volkswagen Beetle, which reassured her that he was a "nice person." In fact, Ghomeshi acquired that Beetle seven months after the event she was recalling.

"We know that this memory makes one seriously question what else might be honestly remembered by her and yet actually be equally wrong? This demonstrably false memory weighs in the balance against the general reliability of L.R.'s evidence as a whole," Horkins said.

He also questioned the two emails she sent to Ghomeshi following the alleged assault, one with a video she wanted him to watch, and then another that contained a picture of her in a bikini.

"The expectation of how a victim of abuse will, or should, be expected to behave must not be assessed on the basis of stereotypical models. Having said that, I have no hesitation in saying that the behaviour of this complainant is, at the very least, odd. The factual inconsistencies in her evidence cause me to approach her evidence with great skepticism," Horkins said.

While her evidence seemed "rational  and balanced" at first, on cross-examination it "suffered irreparable damage," he said.

"Defence counsel's questioning revealed inconsistencies, and incongruous and deceptive conduct. [Complainant #1] has been exposed as a witness willing to withhold relevant information from the police, from the Crown and from the court. It is clear that she deliberately breached her oath to tell the truth. Her value as a reliable witness is diminished accordingly."

Lucy DeCoutere

When turning to the testimony of Lucy DeCoutere, who waived the right to a ban on her name, Horkins questioned her decision to meet with police and the Crown right before testifying to reveal information that she had not previously disclosed.

"It is difficult for me to believe that someone who was choked as part of a sexual assault, would consider kissing sessions with the assailant both before and after the assault not worth mentioning when reporting the matter to the police," Horkins said. "I can understand being reluctant to mention it, but I do not understand her thinking that it was not relevant."

Horkins also questioned why she gave differing timelines about whether Ghomeshi had slapped her first or choked her first when she told her story to the media, police and in court.

"An inability to recall the sequence of such a traumatic event from over a decade ago is not very surprising and in most instances, it would be of little concern. However, what is troubling about this evidence is not the lack of clarity but, rather, the shifting of facts from one telling of the incident to the next. Each differing version of the events was put forward by this witness as a sincere and accurate recollection," he said.

"When a witness is comfortable with giving differing versions of the same event, it suggests a degree of carelessness with the truth that diminishes the general reliability of the witness."

He also said that to him, it was clear that DeCoutere "very deliberately chose not to be completely honest with the police."

"Her statement to the police was what initiated these proceedings. This statement was subject to a formal caution concerning the potential criminal consequences of making a false statement. It was given under oath, an oath to tell the truth, the whole truth and nothing but the truth, not a selective version of the truth. Despite this formal caution and oath, Ms. DeCoutere proceeded to consciously suppress relevant and material information. This reflects very negatively on her general reliability and credibility as a witness. It indicates a failure to take the oath seriously and a wilful carelessness with the truth."

Horkins also noted DeCoutere's decision to send Ghomeshi flowers within days of when she said she was allegedly choked.

"Sending thank-you flowers to the man who had just choked you, may seem like odd behaviour. I acknowledge that this might be part of her effort, as she said, to normalize the situation. However, whether or not this behaviour should be considered unusual or not, this was very clearly relevant and material information in the context of a sexual assault allegation. The deliberate withholding of the information reflects very poorly on Ms. DeCoutere's trustworthiness as a witness."

Jian Ghomeshi verdict

Defence lawyer Marie Henein, middle, congratulates Jian Ghomeshi, after Judge William B. Horkins acquitted him on four charges of sexual assault and one of overcoming resistance by choking. (Pam Davies)

Complainant #3

Horkins questioned what he called the third complainant's "decision to suppress" her relationship with Ghomeshi following the day that she alleged an assault occurred.

"[She] claimed that she did not think it was important to disclose this intimate contact and said she wasn't "specifically" asked about post-assault sexual activity with Mr. Ghomeshi. She ultimately acknowledged that she left out things because she felt it didn't fit 'the pattern.' And when pressed further in cross-examination, she said that she did not think that what had happened between them at her home qualified as 'sex.'"

He went on:

"I accept [defence lawyer Marie Henein's] characterization of this behaviour. [Complainant #3] was clearly 'playing chicken' with the justice system. She was prepared to tell half the truth for as long as she thought she might get away with it. Clearly, [she] was following the proceedings more closely than she cared to admit and she knew that she was about to run head first into the whole truth.

"[She] offered an excuse for hiding this information. She said that this was her 'first kick at the can,' and that she did not know how to 'navigate' this sort of proceeding. Navigating this sort of proceeding is really quite simple: tell the truth, the whole truth and nothing but the truth."

Conclusion

Horkins noted that the allegations against Ghomeshi "are supported by nothing in addition to the complainant's word." There is no DNA evidence or other "smoking gun."

Ghomeshi Trial leaves court on March 24 2016 acquitted

Jian Ghomeshi and lawyer Marie Henein leave a Toronto courthouse on Thursday following a trial that drew interest from across the country. (Frank Gunn/Canadian Press)

"At trial, each complainant recounted their experience with Mr. Ghomeshi and was then subjected to extensive and revealing cross-examination. The cross-examination dramatically demonstrated that each complainant was less than full, frank and forthcoming in the information they provided to the media, to the police, to Crown counsel and to this court."

He did say that the courts must "guard against applying false stereotypes concerning the expected conduct of complainants."

"I have a firm understanding that the reasonableness of reactive human behaviour in the dynamics of a relationship can be variable and unpredictable. However, the twists and turns of the complainants' evidence in this trial, illustrate the need to be vigilant in avoiding the equally dangerous false assumption that sexual assault complainants are always truthful."

A successful prosecution depends on the court being able to trust each complainant, he said.

"The success of this prosecution depended entirely on the court being able to accept each complainant as a sincere, honest and accurate witness. Each complainant was revealed at trial to be lacking in these important attributes. The evidence of each complainant suffered not just from inconsistencies and questionable behaviour, but was tainted by outright deception.

"The harsh reality is that once a witness has been shown to be deceptive and manipulative in giving their evidence, that witness can no longer expect the court to consider them to be a trusted source of the truth. I am forced to conclude that it is impossible for the court to have sufficient faith in the reliability or sincerity of these complainants. Put simply, the volume of serious deficiencies in the evidence leaves the court with a reasonable doubt."

 

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