As It Happens

How Jian Ghomeshi's lawyers accessed thousands of private messages between complainants

Journalist Sarah Boesveld explains how it's possible that the defence at the Jian Ghomeshi sexual assault trial revealed thousands of messages sent between two women.
While questioning Lucy DeCoutere, who had told the court that Ghomeshi, after a dinner date, had took her by the throat at his home, choked her and slapped her, Henein suggested she had kept hidden details about other contact she had with the former radio personality following the alleged assault. (Alexandra Newbould/CP)

They were thousands of private messages sent back and forth over a period of a year. But at the trial of former CBC Radio host Jian Ghomeshi, those exchanges have become very public.  

They are emails and texts exchanged between Lucy DeCoutere and the third complainant. Both women have accused Ghomeshi of assaulting them (DeCoutere has chosen to waive her right to a publication ban). The correspondence was presented by defence lawyer Marie Henein at his trial, leaving many surprised and confused about how she obtained them.

Sarah Boesveld is a senior writer with Chatelaine. (Twitter)

Sarah Boesveld is a senior writer with Chatelaine who has been covering the trial. She spoke with As It Happens host Carol Off.

Here is part of their conversation:

Carol Off: Lots of people wouldn't think their private emails between themselves and another person could be accessed. So how does the defence lawyer go about getting at our private emails?

Sarah Boesveld: They have to go through a third party records application process, which does have to take place in sort of a pre-trial setting. They would actually have to bring information to give reason for the judge to allow access to emails. You could ask, say Facebook, you could subpoena them to provide access to those private correspondences and you don't actually have to have permission from the individuals themselves.

CO: Do you think that people should be a bit more aware of the fact that their email exchanges, everything that they say amongst each other and to anybody else, might end up being used as evidence if they're involved in a sexual assault case?

SB: It very well could be and it's quite unsettling because of the way that we interact with one another nowadays. Because we have to wait outside every day to get in, some of the other court reporters on the steps talk about these things. We just discussed how if someone calls you and has a phone conversation it's almost like: 'What's wrong? Why are you phoning me instead of texting me or sending me an email?'

But that's a trail that people can very much access with a lot more ease than I think we realize. You hear these warnings all the time and you block them out. But it is possible that this stuff can be compelled into court. But again, not to freak everyone out, they do have to have very, very good reason to access those texts and emails. But it is a good sign that maybe everyone should be careful and it's not just sexual assault cases — it's certainly any other case as well.

For more on the emails take a listen to Sarah Boesveld's full interview. 

On Thursday, the Crown and the defence gave their closing arguments at Jian Ghomeshi's trial. The judge has reserved his decision until late March. Ghomeshi has pleaded not guilty to the charges against him. 

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