Crown has big decision before Jian Ghomeshi's next trial, lawyers say
'It's a different complainant and a completely different scenario,' former Crown says of June hearing
While Jian Ghomeshi's mother hugged him with relief after the former broadcaster was acquitted of sexual assault and choking charges on Thursday, protesters disappointed by the ruling comforted one another with a different message: We'll get him next time.
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Even though Crown prosecutor Michael Callaghan briefly reminded reporters of the 48-year-old's pending June trial after Thursday's decision came down, several veteran lawyers questioned whether he will go ahead with the case.
Given the scorching rebuke from Ontario Court of Justice Judge William Horkins to the three complainants in Ghomeshi's first sex assault trial — about what he called their attempt to manipulate the proceedings by withholding evidence — Callaghan needs to have police interview the complainant in the second trial again in order to make a decision about what to do, criminal lawyer Russell Silverstein said.
"I think the way the whole trial unfolded should cause the Crown concern," he said. "They were caught by surprise with a lot of information with respect to their witnesses, which I'm sure they don't want to happen again."
There are differences between the two trials, however, which Silverstein said may bolster the prosecution's second case — the most significant point being the possibility of a witness. The complainant has claimed that a colleague witnessed one of the incidents, which included Ghomeshi allegedly groping her and grinding himself against her. An internal investigation conducted by Janice Rubin for the CBC also noted that several witnesses "had knowledge of" these events.
The Crown attorney told reporters Thursday that he would review the judge's decision over the weekend and "consider our position." It's unclear if Callaghan was referring to the possibility of an appeal or to the June trial, which he mentioned briefly in his statement.
He was unable to clarify his meaning, however, as he left abruptly when the news conference was interrupted by a topless protester, who launched herself at the podium.
'Not for Crown to win at all costs'
The prosecution's case at Ghomeshi's February trial collapsed because the complainants withheld information from police and the court — and not because the Crown failed to prepare a case, criminal lawyer Ari Goldkind said.
"That said, the higher-ups at the Ministry of the Attorney General have quite a lot of egg on their faces through no fault of their own," he said. "So, I think the Crown will decide it's not worth pursuing charges if police interview the complainant again and find any frailties in that case. It's not for the Crown to win at all costs."
The allegations connected to each trial are also quite different, even though both involve charges of sexual assault. In the trial that just ended, all three complainants dated Ghomeshi and had alleged he was violent with them while they were kissing.
But the woman involved in the June trial used to work at CBC. There's no indication the pair had anything more than a professional relationship.
She told CBC News that she made a complaint to her union representative about the harassment she was experiencing at work. The CBC also launched an independent internal probe, which found the former Q host violated CBC standards, and that his behaviour was "considered to create an intimidating, humiliating, hostile or offensive work environment."
All of these things — the possibility of a witness, reports to a union representative and the pattern of behaviour uncovered by the internal probe — provide the Crown with corroborating evidence, something that could potentially support the complainant's testimony, former Crown prosecutor Daniel Lerner said.
While it's not legally required, Lerner said that corroborating evidence can strengthen the prosecution's case because the judge has more to rely on than one person's memory.
"If someone said, 'I saw it occur,' those emails wouldn't have mattered in the same way," he said, referring to two dozen emails the defence presented in February that contradicted the memories of two of the complainants.
Lerner also said that the outcome of the first case should not affect the Crown's decision about whether to move ahead with the next.
"Just because these complainants weren't found to be truthful doesn't mean that there will be the same issue with others," he said. "It's a different complainant and a completely different scenario and there's been no suggestion that [woman] is making anything up.
"At the end of the day, the Crown's questions are still the same," Lerner said — and that's whether there's enough evidence to reasonably secure a conviction.