Ghomeshi trial judge praised by lawyers for 'right decision'

While former CBC Radio host Jian Ghomeshi's acquittal has sparked protests, many within the legal community are praising the decision, agreeing with the judge that the complainants' credibility issues raised reasonable doubt in the case.

Former CBC host found not guilty on 4 charges of sex assault, 1 charge of choking

On Thursday, Jian Ghomeshi was acquitted on four counts of sexual assault and one count of choking. (Chris Young/Canadian Press)

While former CBC Radio host Jian Ghomeshi's acquittal has sparked protests, many within the legal community are praising the decision, agreeing with the judge that the complainants' credibility issues raised reasonable doubt in the case.

"I think the criminal justice system worked perfectly,' said Russell Silverstein, a Toronto-based criminal defence lawyer. "The trial judge did a masterful job of analyzing the evidence, identifying the weaknesses in the prosecution's case and coming to the right decision."

On Thursday, Ghomeshi was acquitted by an Ontario court judge on four counts of sexual assault and one count of choking.

In his ruling, Judge William Horkins scolded the three complainants for their "deceptive testimony," saying that there were serious deficiencies in their evidence that significantly damaged their credibility and reliability.

The trial, which began in Toronto on Feb. 1, 2016, lasted eight days. Ghomeshi had pleaded not guilty to all the charges, which were related to assaults alleged to have taken place from 2002 to 2003. 

"I want to see justice done, but what [the complainants] need to take away from this is they come forward and tell the truth, they will be respected. And justice will be done," Silverstein said.

"What they can't do is participate in a prosecution and decide for themselves what to admit and what not to admit, what truth to tell and what truth not to tell. I hope that that's the takeaway here."

The first woman to testify told court that Ghomeshi had pulled her hair and punched her in the head at his home after a dinner date. DeCoutere said the former Q host had choked and slapped her at his home. The third woman said Ghomeshi had squeezed her neck and covered her mouth while they were kissing on a park bench.

But it was later revealed in court that each woman had had contact with Ghomeshi following the alleged assaults and that details of this contact hadn't been provided to police or the Crown in their initial statements.

In an interview with CBC's Ioanna Roumeliotis, former Ontario crown prosecutor Daniel Lerner said the role of the Crown is to represent the public, not the complainants.

"They're there to ensure that there is a reasonable prospect of conviction and that there's a public interest in proceeding [with a case]," Lerner said. 

"It's not the Crown's role to come up with the evidence. It's not the Crown's role to investigate the case," he said. "Witnesses need to come into court very open and very honest about what happened. And if surprises happen, the Crown is stuck with the evidence they have, and they have to do the best they can with the evidence they have."

Dave Perry, a former detective with the Toronto Police Service who now runs his own detective agency, told CBC that in any criminal investigation, the police's role is to investigate the complaint, not the complainant.

"You don't start seizing people's hard drives and seizing and reading their emails," Perry said. "Nobody would ever come forward. Who would want their life under that kind of a microscope?"

A question of credibility

The case, said Ottawa-based criminal defence lawyer Michael Spratt, was determined on the credibility and reliability of the witnesses.

"There were no smoking guns, as the judge said, there were no corroborating witness, no DNA evidence, and as the judge rightly noted, that's not required. But what is required is to be convinced beyond a reasonable doubt, which is a very high standard, that the witnesses were telling the truth. 

"Given the deficiencies in their evidence, the judge pointed out that very high standard obviously wasn't met."

Spratt said the judge was clear that an inconsistency, or lack of memory, or something that may seem unusual to an outside observer like contact with the accused, isn't necessarily enough to raise doubt, and that there can still be convictions when those pieces of evidence exist.

What was rightly called out by the judge, he said, was the lack of disclosure, the reluctance to disclose and explain the inconsistencies and illogical pieces of the evidence.

"That was problematic, not the inconsistencies themselves"

Judge considers appeal court

Some noted the strong language Horkins used to criticize the complainants' testimony, but Toronto-based criminal defence lawyer John Rosen said that's not necessarily unusual and can vary from case to case. 

"The thing is that his comments, they're really in part for public consumption and in part for the court of appeal," Rosen said. "He has to explain why he's acquitting in case the Crown wants to appeal. So he has to be very clear in his statements."

Rosen said that in the Ghomeshi trial, the witnesses made the same mistake that many complainants in this kind of case make.

"They don't give a full on account of themselves, and they're not truthful when they first speak to the police, and they hold things back purposely, and it always gets them into trouble."

"The thing about court is that it's a search for truth. Unless people are completely truthful and up front about everything — the good, the bad, the ugly — they're going to run into problems."

Toronto-based criminal defence lawyer Joseph Neuberger commended the judge for a "very detailed, thorough analysis of all the evidence. It's a very well written and analyzed decision."

"There is a lot of foundation and evidence for the judge to make findings of deception and lack of credibility and reliability in this case," Neuberger told CBC's As It Happens. 

"There is a lot of material that, for one reason or another, was not provided to the police when they were conducting their interviews and not disclosed to the Crown. [It's] extremely damaging to the reliability and credibility of these witnesses."