Jian Ghomeshi ruling should be appealed, lawyer says

A Toronto-based lawyer says the Crown has sufficient grounds to appeal part of the Jian Ghomeshi ruling, arguing the judge made a significant error by concluding the former CBC radio host did not own a Volkswagen Beetle when he was accused of sexually assaulting one of the witnesses.

Judge William Horkins 'engaged in creative writing' in his ruling: lawyer

Linda Redgrave was one of three complainants in a sexual assault trial involving former CBC broadcaster Jian Ghomeshi, who was acquitted of all the charges. Redgrave waived a publication ban three weeks after the acquittal, saying she wants to help sexual assault survivors.

A Toronto-based lawyer says the Crown has sufficient grounds to appeal part of the Jian Ghomeshi ruling, arguing the judge made a significant error by concluding the former CBC Radio host did not own a Volkswagen Beetle when he was accused of sexually assaulting one of the complainants.

"As a matter of law, he couldn't come to that conclusion," said criminal defence lawyer Karen McArthur. 

Last month, Ghomeshi was acquitted by Judge William Horkins in the Ontario Court of Justice on four counts of sexual assault and one count of choking.

McArthur has raised this issue as the Crown's window for seeking an appeal narrows. Prosecutors have not yet made a decision, but a spokesperson for the attorney general's office told CBC News to check back on Monday, the final day of the 30-day appeal window. 

McArthur's comments follow a Canadaland story that questioned Horkins's ruling on the first witness's testimony about the car.

During the trial, Linda Redgrave, who recently waived her right to a publication ban on her identity, had told court that she was first assaulted by Ghomeshi in a yellow Volkswagen Beetle in December 2002.  She claimed that Ghomeshi had pulled her hair in the vehicle after they began kissing.

'1960s Disney movie'

She told court that she had felt safe with Ghomeshi, in part, because he was "driving a car that reminds me of a 1960s Disney movie."

Under cross-examination, Henein questioned Redgrave's memory of that event, suggesting that Ghomeshi owned a Volkswagen Golf GTI at the time of their meeting and only got the Beetle "months and months" after they met.

As well, an agreed statement of facts states that "Ghomeshi leased a Volkswagen Beetle beginning on July 14, 2003."

In his decision, under the subheading "The Love Bug," Horkins stated that he found, as fact, that Ghomeshi did not acquire the Beetle until seven months after the alleged attack.

"In a case which turns entirely on the reliability of the evidence of the complainant, this otherwise, perhaps, innocuous error takes on greater significance," he wrote.

'Creative writing'

"This demonstrably false memory weighs in the balance against the general reliability of L.R.'s evidence as a whole."

Yet McArthur said Horkins "engaged in creative writing" and "came to that conclusion through fiction."

"Could Horkins make that fact? There was no evidence about that," McArthur said. "None."

McArthur said that all Henein did was make a suggestion that Ghomeshi may have had a different car at the time of the alleged assault, and that that does not constitute evidence.

Henein, as Canadaland points out, never entered "into evidence the make, model, or colour of the car Ghomeshi owned at the time Redgrave says he assaulted her."

Jacob Jesin, the lawyer representing Redgrave, would only say that "we have reviewed the judgment very carefully and have concluded there may well be grounds for an appeal, in relation to the verdict, on the charges that centred around our client."

Jesin said they communicated their position to the Crown.

Criminal defence attorney Michael Spratt, who followed the Ghomeshi case, said he doesn't believe that Horkins's ruling on this piece of evidence constitutes a clear error in law.

He added that the Crown could have called evidence during the trial to determine the make of car Ghomeshi was driving at the time, but chose not to.

"I don't think it's something the Court of Appeal would require a new trial. It's one piece of evidence. And while the judge did give it some import, I don't think necessarily that's the one fact that made or broke the case," Spratt said.

"The Court of Appeal might say it isn't a fact but it was a reasonable inference to make given the admission and in view of all the evidence."