Jian Ghomeshi trial: Collusion allegation could factor heavily in ruling, lawyer says

Ontario Court Judge William Horkins is expected to deliver a decision in the high-profile sexual assault trial of Jian Ghomeshi on Thursday. It's been six weeks since the former CBC broadcaster was last in the courtroom. We take a look at some of what the judge has likely considered during that time.

Judge likely weighing significance of complainants' email exchange ahead of decision expected March 24

Former CBC broadcaster Jian Ghomeshi, 48, will return to Toronto's Old City Hall courthouse March 24 and is expected to find out whether or not he will be convicted of four counts of sexual assault and one count of overcoming resistance by choking. ( David Donnelly/CBC)

Over a period of eight days in February, Jian Ghomeshi's defence counsel worked over the testimony of the three complainants in the former CBC broadcaster's sexual assault trial, laying out inconsistencies, omissions and an allegation of collusion before Ontario Court Judge William Horkins.

Ghomeshi himself did not testify at the judge-only trial, but Horkins cannot hold that against him when making his ruling, which is expected to come down March 24. Instead, the judge's decision must be based on whether he believes the evidence presented by the Crown or whether he feels the defence cast reasonable doubt on the credibility and reliability of the complainants' testimony.

Ghomeshi, 48, has pleaded not guilty to four counts of sexual assault and one count of overcoming resistance by choking, all of which relate to incidents that are alleged to have occurred in 2002 and 2003 and involve three women.

It's been six weeks since the two sides made their closing arguments at Toronto's Old City Hall courthouse, so here's a reminder of some of the key moments of the trial that lawyers say will factor into the judge's ruling.

How independent was the testimony?

The outcome of a sexual assault trial often hinges on the reliability of a complainant's testimony. If there's no physical or other corroborating evidence, the trial boils down to a he said/she said narrative. And since Ghomeshi never testified, it was only the women's accounts of what occurred that underwent intense scrutiny.

The Crown can, however, attempt to corroborate witness testimony — and establish a pattern of behaviour — if they can prove the witnesses formulated their accounts independently, criminal lawyer Russell Silverstein said.

"When you have three people telling similar stories about a particular accused — and there's no way they could be privy to each other's stories — [it] increases the likelihood they're telling the truth, because it defies coincidence," Silverstein said.

But Ghomeshi's defence lawyer, Marie Henein, undercut that strategy, the litigator said.

Lucy DeCoutere emailed Jian Ghomeshi hours after an alleged sexual assault, saying she wanted to have sex with him 2:35

Henein told the court that two of the complainants, Lucy DeCoutere — who has waived her right to a publication ban — and another woman had exchanged thousands of messages, some of which discussed their allegations against Ghomeshi.

Crown prosecutor Michael Callaghan told the court that while the pair supported one another, there's no sign they colluded to come up with similar accounts of the alleged assaults.

But Silverstein said the sheer number of messages they exchanged killed any possibility of using each woman's testimony to support the other's.

"Once the Crown was deprived of that, it really got in the way of their hopes for a conviction," he said.

Emails and new police statements

In his closing arguments, Callaghan called on the judge to consider the reliability and credibility of the witnesses, noting that none of the three women wavered in her allegations against Ghomeshi — which included hair-pulling, slapping, punching and choking.

It's hard to make out proof beyond a reasonable doubt on the back of a witness who hasn't been truthful about important matters.- Russell Silverstein, criminal lawyer

The defence uncovered few inconsistencies in those core allegations. Henein questioned some parts of the sequence of events — whether one complainant was choked or slapped first, for example — but the bulk of her questioning focused on the inconsistencies between the women's testimony and the content of correspondence they sent to Ghomeshi after the alleged assaults.

The first complainant never disclosed to the court or police that she had sent an email to Ghomeshi after the alleged assault that included a photo of herself in a red bikini.

After the defence presented that email and another in court, DeCoutere's lawyer approached the Crown and asked whether he would be interested in knowing whether there was any communication between DeCoutere and Ghomeshi.

Ghomeshi's lawyer unveiled in court this picture of Lucy DeCoutere, right, and Ghomeshi cuddling in the park a day after he allegedly assaulted her in July 2003. Ontario Court Judge William Horkins will have to consider whether correspondence between DeCoutere and one of the other two complainants accusing Ghomeshi of sexual assault constitutes witness collusion as the former CBC broadcaster's lawyers alleged in court.

DeCoutere made another statement to police on the day she testified but did not go into detail about all of the roughly two dozen emails she and Ghomeshi exchanged after the alleged sexual assault in July 2003.

Described in some media columns about the trial as "bombshells," these emails seriously damaged those two complainants' credibility, Silverstein said.

The issue is not that these women maintained contact with Ghomeshi, Silverstein said, but the fact that they withheld that information from police and, to some extent, the court.

"It's hard to make out proof beyond a reasonable doubt on the back of a witness who hasn't been truthful about important matters," Silverstein said. "I just really get the sense that the witnesses tried to mould their report and their testimony in a way so as to secure a conviction — and they were caught doing so."

Not remembering not the same as lying, ex-Crown says

Former B.C. Crown prosecutor Wendy van Tongeren, however, said that it's important to note that the two witnesses did, in fact, mention their correspondence with Ghomeshi in their testimony. The first witness said she "might have drafted" an email in anger while DeCoutere did disclose she maintained a playful correspondence with Ghomeshi after the alleged assault.

But when questioned about the contents of specific emails and a letter, DeCoutere told the court that she genuinely did not remember sending an email after the alleged assault in which she said she wanted to have sex with Ghomeshi or writing him a six-page written letter.

Ghomeshi's lawyer, Marie Henein, tried to discredit DeCoutere and the other complainants by questioning why they were not more open about their correspondence with Ghomeshi. She questioned DeCoutere about a six-page letter she wrote Ghomeshi days after she alleges he choked and slapped her following a dinner date in Toronto. DeCoutere's last line of the letter was 'I love your hands.'

Her failure to recall details could be related to the nature of memory, said van Tongeren, who specialized in sexual assault.

"Chances are they will remember there was some contact, not the extent of the contact, because it's become a script memory — and the only cue is you sitting at your computer," she said. "If I asked you to tell me everything you've written on your computer in the last six months, how are you going to do?"