Former CBC Radio star Jian Ghomeshi has arguably been tried in the public forum for months, but when he appears in court tomorrow, the judge will focus on only one thing: The evidence presented in court.
Ghomeshi, 48, who lives in Toronto, has pleaded not guilty to four counts of sexual assault and one count of overcoming resistance by choking. His trial in Ontario Court will be presided over by Judge William Horkins.
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"Ultimately, Mr. Ghomeshi doesn't have to prove anything," says Toronto criminal defence lawyer Joseph Di Luca, vice-president of the Criminal Lawyers' Association (Ontario). "It's the Crown that has to prove the case.
"We always say that, but it's very true and you can never forget it," says Di Luca. "The tendency to rush to judgment, the tendency to try someone in the media or to come to rash conclusions just on the basis of what we've heard, or what we think, or what we know must have happened is very tempting."
That presumption of innocence is paramount says Di Luca, who is not involved in the Ghomeshi case.
The complainants in this trial are three women who claim Ghomeshi got violent during dates, without their consent. As in all sexual assault cases, their identities are automatically protected by a publication ban. Actress and air force captain Lucy Decoutere is the only complainant who has asked for the ban on her identity to be waived.
2nd trial set for June
Ghomeshi has a second trial scheduled for June to deal with another charge of sexual assault.
The allegations in this trial date back several years and it's unclear at this point if there is any physical evidence. That means Ghomeshi's guilt or innocence could come down to the credibility of the witnesses and the reliability of their recollections, Di Luca says.
'Judges are often stuck with two versions of events which might both equally be true, and that is an acquittal.' - Joseph Di Luca, criminal defence lawyer
"Credibility cases are very difficult to prove because a judge needs to listen to two versions of events, likely maybe more than two, and decide, has the Crown proven the case beyond a reasonable doubt?" Di Luca says.
The passage of time never enhances memories and makes the recall of details more difficult, Di Luca says, adding the defence could also suggest the women are colluding or conspiring together. The judge will be looking for inconsistencies, whether details sound fabricated, possible ulterior motives and how the complainants tell their stories.
"Where there's no corroborating external evidence, it's a very high standard for the Crown to meet, just on credibility alone," Di Luca says. "Judges are often stuck with two versions of events which might both equally be true, and that is an acquittal."
Fired by CBC
The CBC fired Ghomeshi on Oct. 26, 2014, days after two executives were shown graphic evidence the radio host had physically injured a woman. Ghomeshi had shown them material to prove everything he was being accused of by a "jilted ex girlfriend" was consensual.
In a lengthy Facebook note posted shortly after his dismissal, Ghomeshi detailed his "adventurous" sexual tastes, including "role play, dominance and submission." He insisted all his BDSM relations were consensual.
But media reports quickly followed in which several women alleged Ghomeshi physically and sexually attacked them without their consent.
The Crown may call on some of those women to testify, says former B.C. Crown counsel Sandra Garossino, who has prosecuted many sexual assault cases.
She said that testimony could be be introduced as "similar fact evidence" to show an accused's pattern of behaviour. "The purpose is to corroborate the accounts of the complainants. That tends to lend credence to a witness account if other people are saying this happened to me."
The media attention surrounding this case is also unusual, Garossino says. Ghomeshi's defence team, led by high-powered lawyer Marie Henein, may go after witnesses for going to the media first and police later. Garossino says the defence could also try to cast the complainants as being part of a "malicious takedown, that maybe they didn't part on positive terms and coming forward was an act of revenge."
Beyond casting doubt on the credibility and reliability of the Crown's witnesses, the lines of defence are limited, Di Luca says. Possibilities include:
- Denying the incident ever happened.
- Acknowledging the incident did happen, but arguing that it was consensual.
- And third, the accused was operating under the mistaken belief of consent.
The Supreme Court of Canada has ruled that a person can consent to an assault and the unintentional infliction of bodily harm but cannot consent to the intentional infliction of bodily harm, which has been applied in sexual context, Di Luca says.
As for Ghomeshi, the man at the centre of it all may not utter a single word in his own defence. He is under no legal obligation to testify. He and his legal team, may decide at any point during the trial whether he does or not.
Ghomeshi's trial is scheduled to last three weeks.