Given the Supreme Court of Canada’s recent horrendous decision in R. v. J.J., 2022 SCC 28 (extending its half-decade Crown win streak for sex assaults at that Court to 35) that I blog about here and the recent jury verdict in the Jacob Hogaard case (noting the awful, one-sided media coverage of it), I thought I’d post my comments on the Jian Ghomeshi trial from 2016 which directly led to this awful legislation. Justice Moldaver even made very pointed (clueless, to boot) remarks to defence counsel Megan Savard at the JJ hearing criticizing Ms. Henein’s stellar and irreproachable (per Prof. Craig) defence of Ghomeshi (1:53-2:01). Clearly, the naïve and irresponsible government, media, general public and SCC viewed the Ghomeshi acquittals as a gross miscarriage of justice, when they were, in fact, everything but that. Listen to the recent embarrassing, irresponsible and cringe-inducing podcast by Jesse Brown of Canadaland on this, who continues to refuse to admit defeat (and/or his journalistic misconduct) in attempting to destroy Ghomeshi all these years now. I managed to get my hands on the trial transcripts of the Ghomeshi trial, and will review them below.
Since 2 of 3 complainants have a publication ban, I’ll refer to them as Complainants 1 (L.R. – edit July 18, 2022 – Linda Redgrave, who subsequently waived the publication ban), 2 (Lucy Decoutere), and 3 (S.D.). Let’s deal now with some of those pesky details, shall we?
When confronted with emails largely contradicting her trial version of events, one complainant claimed the email was “bait” to get him to call to get her to explain why he punched her in the head. She didn’t think a “common person” would believe her explanation – y’think? She claimed at trial that she had no romantic feelings toward him after – again, highly contradicted by her emails (no, nothing at all to do with myths or stereotypes). Of course, nowadays, the SCC and Parliament have ensured that lying complainants are less likely to be confronted with their texts/emails that contradict their narrative without a s. 278 application and advance notice of the lies they can expect to have to answer for.
Complainant 1 (L.R.)
Ghomeshi had a bright yellow VW Beetle at the time (p. 45). He kisses her, then grabs her hair “really, really hard.” Later, she goes to his house alone after a taping. He then pulls her hair and punches her “multiple times” in the head – while he’s somehow also pulling her hair (57). Crown asks her why she didn’t run out of house, why she didn’t scream, why she waited so long to report – all arguably myths, technically. She claims that she didn’t report at the time, because of societal “stigma” of reporting sexual assault – star defence counsel Marie Henein properly objects to evidence of “societal stigma” and ends that.
LR never saw him again, but contacted him again. Did not discuss details of her allegations with Complainants 2 and 3.
Cross-examination – excellent. Begins by confirming that she took oath to tell truth both in police statement and at court. LR had reviewed her statement week prior. Her statement to police (13 years after the alleged incident) took a mere 25 minutes – shocking on its own. Police never asked her to show them neighbourhood of residence (or asked about it). Same with not following up on emails she admitted to sending accused. Does not recall officer telling her not to read more about the case.
Accused was smitten – not dazzled (later just an “interest”) – with her. Interesting distinction – obviously fibbing/lying. Denies telling her friend she herself was smitten by accused. Fudges on whether she told friend after first incident that she really liked him and wanted to see him again (technically, arguably a myth – many judges/Crown would eagerly jump in to protect complainant at this point these days on grounds of relevance and/or impermissible myths). Almost gets her to admit that she was angry after 2nd meeting that he was not terribly interested in her. And that her third meeting was meant to be romantic between her and accused. Then gets her to admit that she went straight to the car after – not the pub – given that it was a snowstorm.
Then, gets her on the Beetle – it was a GTI. She’s “not a connoisseur of cars.” Told Kevin Donovan of the Toronto Star that Ghomeshi yanked her hair hard. Then tries to backtrack – Kevin Donovan “changed her story” but admits saying accused yanked her hair hard. Her hair was long at the time – “retracts” her email follow-up to police saying she had hair extensions at the time. Doesn’t admit to lying when she said on TV that he pulled her hair right after she got in the car – during direct, she said after kissing. Other inconsistencies noted (head smash allegation retracted, changes story on whether shocked, etc.). Notes that whatever happened in the car, it wasn’t enough to keep her away (myth?).
Told media she never contacted him again after 3rd incident. Confirms this multiple times. Then Henein pulls out stacks of emails she sent him afterwards. Simply glorious. “Good to see you again” and “your show is still great.” Second email with photoshopped photo of herself in a string bikini – downloaded 3 hours prior to sending. Myths – my foot. Maybe she was too “traumatized” to remember how obsessed with him she was?
Another email says she’s been watching him on TV – despite claiming that every time she saw his face she’d be traumatized.
Complainant 2 – Lucy Decoutere
She met Ghomeshi at a Banff event, and flirted with him. She went to Toronto to see him, and he took her to dinner and then back to her house, where he “started kissing me, and then he took me by the throat and he just pushed me against the wall, cutting off my breath, and he slapped me three times” (228 – as revealed in cross-examination, the sequence had previously been very unclear, in her renditions to media and police). She then stayed, to “placate the situation.” Afterwards, they “might have kissed on the sofa,” sitting close together on the sofa, and kissing each other good night, as she didn’t want to “seem frosty” – all of the kissing is added at trial and not previously mentioned to police nor media, as noted by Ms. Henein in cross-examination (she specifically told police that nothing significant had happened after, as she somehow didn’t think this was “consequential”). She didn’t tell anyone about this incident because she wanted to “protect him.” She then spent the weekend with him, and later sent him flowers (also revealed at or during trial).
On cross-examination, she is confronted with photos of her cuddling Ghomeshi in the park, after the alleged assault. She “doesn’t remember” the photos being taken. She didn’t “understand the relevance of after-incident contact,” which Ms. Henein points out is a “very well-rehearsed answer.” Her prior testimony that she had no intention of pressing charges was a lie, as demonstrated by a message she sent, in which she said she wants him “f**king decimated” – despite her further perjury that she has “compassion” for him. She had some “casual” emails after the fact with him, which she realized she should possibly let the Crown know of the day before – after LR was decimated on the stand. She cannot find the emails, though. Thankfully, Ms. Henein has them, and – at that time – was allowed to ambush the Crown’s lying witness with them.
She previously claimed to have lost access to the emails, but subsequently tells police she deleted them. When she is confronted with these “forgotten” emails, it includes post-incident emails she sent to Ghomeshi such as “Sunday, in my brain has a slot all for you. rrrrrrr.” She signs her subsequent email “torn between two lovers.” She wants to “play with him” in Banff. She further emails, “If I don’t get to hang with you while we are in Banff, I’m going to beat the crap out of you.” She sends a photo to him, with the subject “Proof that you can’t live without me.” She further tells him “let me know when you want to hook up. I’m doing stuff, but would happily use you as a procrastination technique” – note, that her lies statements to police and media were that she had no subsequent romantic interest in him. Also, “had a really great dream the other night. You were with me in Toronto.” Among many other “forgotten” emails is one of her “fellating” a bottle. Although she told police his hands terrified her, her letter said she “loved” his hands. Her emails stated “I think you are magic and would love to see you” and she wants to “frolic on the beach” with him. She “wants to f**k his brains out. Tonight.” Sounds very non-romantic to me! Her love letter that she “forgot” about mentions that he was “too sparkling.” And “what on Earth could be better than lying with you, listening to music and having peace. Nothing.”
Complainant 3 (SD)
After this second devastating Crown witness – also destroyed by excellent cross-examination – Ms. Henein informs the Court that it appears SD had been listening to the news – contrary to the Court’s order – and now also had additional information to “disclose.” They then require a last-minute s. 276 application on the basis of this last-minute disclosure. She met Ghomeshi at a music festival at which she was performing. He takes her out to dinner, and she sees him again at the festival, later. They kiss on a bench in the park, and then she “felt his hands on my shoulders and his teeth and then – and then his hands go around my neck and he was squeezing.” That led to “some difficulty breathing,” and he tried to “smother” her. She then gets a cab and goes home, and her mind is a “big blank” as to what else occurred. She later goes out for dinner (again) and to a bar with him, thinking she may have “misread” the situation. Good lord.
The plot thickens. After the bar, there was further “romantic activity” at her home – this was only disclosed at the last minute, of course. She hadn’t thought it was “relevant” to disclose earlier. If it wasn’t Crown misconduct yet for not staying the proceedings to this point (and/or charging all 3 complainants with crimes of perjury), by now it certainly is.
The lies continue. Despite being obviously terrified of him after their original encounter, she later saw him alone at her home romantically because she was – I kid not – “notoriously known for giving people second, third and fourth chances.” She saw him again multiple times afterwards, before she ended her relationship with him.
Kevin Donovan also apparently “lied” – by saying Ghomeshi attacked her, when she had used less aggressive language and claims to have told him that the kissing was initially consensual. She testifies that he “kind of” choked her with both hands, but she had previously told police that she can’t remember if it was with 1 or 2 hands.
Decoutere messaged her that her police statements will be part of a “Jenga tower” – presumably to topple Ghomeshi. She also demonstrably lied under oath (during direct) that she had not discussed her allegations with Decoutere prior to going to police. Her communications with and about other complainants were properly subject to a disclosure request – although I’m sure many Crowns would consider such disclosure “irrelevant” and/or privileged (particularly pertaining to its conversations with complainants).
She is shown to have lied when claiming to have no interest in Ghomeshi (“professionally” and/or personally).
Just to get defence’s hands on disclosure of all of this correspondence, clearly very difficult – even before the idiotic legislation, and especially now. Defence had to go through costly, lengthy, unpredictable third-party disclosure records applications, it appears. SD writes to Decoutere, “They didn’t get into specifics, but for example, if they want our conversation even though the cops have it, they have to put in an application for it, then I, we, would sit with a court appointed lawyer and go over everything and decide what can, cannot be shown. They also said it really depends on how much money he wants to spend. More digging, more money.” It is alarming that most liars can so easily get away with their lies – back then, and especially now. God forbid we allow defence access to any “embarrassing” or “highly personal” communications! Since the presumption of innocence is an absolute joke (or a rape myth) – at best, what could possibly go wrong with this policy?
SD’s very last-minute disclosure of having spent some more time with Ghomeshi and engaging in sex with him, apparently at her place and he spends the night there – clearly blocked from her “traumatized” mind until the very last-minute, coincidentally. Of course, SD insists (with a straight face, apparently) that this minor detail was “irrelevant” – incidentally, likely agreed to by the Crown, SCC and everyone else. She had lied under oath to police previously when she said there was no consensual sexual contact. Only things that “made her feel bad” were relevant, in her view. It was an “omission” and of an “embarrassing” detail (a “misjudgment”), she later claims – and not at all a lie. And things she did not expect to be called out on for lying about, I’d respectfully submit.
Incidentally, it is not too late for the Ontario Attorney General to do its duty and charge all 3 lying complainants with perjury, which was extreme and blatant in this case. Surely, they’ve been busy and have merely overlooked their responsibility and ethical obligations to date on this file. If they refuse to do their duty, individuals should initiate a private prosecution. It is appalling that blatant criminal behaviour is overlooked, excused and encouraged when it comes to Crown witnesses.
R. v. Ghomeshi, 2016 ONCJ 155 is a very fair, reasonable and understated judgment, detailing the (obvious) reasons for the acquittal. Horkins J. points out (gently, I’ll add) with regard to LR that “The impossibility of this memory makes one seriously question, what else might be honestly remembered by her and yet actually be equally wrong?” (para. 36). And “The negative impact that this after-the-fact conduct has on L.R.’s credibility is surpassed by the fact that she never disclosed any of this to the police or to the Crown” (para. 40). LR’s evidence was approached – properly – “with great scepticism” and she “deliberately breached her oath to tell the truth” (paras. 41, 43).
Ms. Decoutere’s further encounters with Ghomeshi, were in her view “inconsequential” (paras. 53, 59) – which reminds me of similarly memorable language at para. 80 of R. v Saddleback, 2020 ABPC 168. Horkins J. finds, correctly, that “It is difficult for me to believe that someone who was choked as part of a sexual assault, would consider kissing sessions with the assailant both before and after the assault not worth mentioning when reporting the matter to the police” (para. 60). Inconsistencies in her narrative of the sequence of events – while generally forgivable (yuck – para. 64), are inexcusable in this instance, due to the “shifting” narrative. In violation of her oath to tell the police the truth, she made the choice to “consciously suppress relevant and material information” which indicates (again – gently) “a failure to take the oath seriously and a wilful carelessness with the truth” on Decoutere’s part (para. 67).
We’re just getting started (paras. 87, 94, 109, 114):
In the framework of a credibility analysis in a criminal trial, Ms. DeCoutere’s attempt to hide this information evidences a manipulative course of conduct. This raises additional and mounting concerns regarding her reliability as a witness. […]
Let me emphasize strongly, it is the suppression of evidence and the deceptions maintained under oath that drive my concerns with the reliability of this witness, not necessarily her undetermined motivations for doing so. It is difficult to have trust in a witness who engages in the selective withholding relevant information. […]
The extreme dedication to bringing down Mr. Ghomeshi is evidenced vividly in the email correspondence between S.D. and Ms. DeCoutere. Between October 29, 2014 and September 2015, S.D. and Ms. DeCoutere exchanged approximately 5,000 messages. While this anger and this animus may simply reflect the legitimate feelings of victims of abuse, it also raises the need for the Court to proceed with caution. Ms. DeCoutere and S.D. considered themselves to be a “team” and the goal was to bring down Mr. Ghomeshi. […]
S.D.’s decision to suppress this information until the last minute, prior to trial, greatly undermines the Court’s confidence in her evidence. In assessing the credibility of a witness, the active suppression of the truth will be as damaging to their reliability as a direct lie under oath.
It gets even better (paras. 118, 119, 121, 135, 137, 138):
I accept Ms. Henein’s characterization of this behaviour. S.D. was clearly “playing chicken” with the justice system. She was prepared to tell half the truth for as long as she thought she might get away with it. Clearly, S.D. was following the proceedings more closely than she cared to admit and she knew that she was about to run head first into the whole truth.
S.D offered an excuse for hiding this information. She said that this was her “first kick at the can”, and that she did not know how “to navigate” this sort of proceeding. “Navigating” this sort of proceeding is really quite simple: tell the truth, the whole truth and nothing but the truth. […]
The primary and overarching principle in every criminal trial is the presumption of innocence. This is the most fundamental principle of our criminal justice system. It is essential to understand that this presumption of innocence is not a favour or charity extended to the accused in this particular case. To be presumed innocent until proven guilty by the evidence presented in a court of law, is the fundamental right of every person accused of criminal conduct. […]
However, the twists and turns of the complainants’ evidence in this trial, illustrate the need to be vigilant in avoiding the equally dangerous false assumption that sexual assault complainants are always truthful. Each individual and each unique factual scenario must be assessed according to their own particular circumstances. […]
Each complainant was confronted with a volume of evidence that was contrary to their prior sworn statements and their evidence in-chief. Each complainant demonstrated, to some degree, a willingness to ignore their oath to tell the truth on more than one occasion. It is this aspect of their evidence that is most troubling to the Court. […]
The success of this prosecution depended entirely on the Court being able to accept each complainant as a sincere, honest and accurate witness. Each complainant was revealed at trial to be lacking in these important attributes. The evidence of each complainant suffered not just from inconsistencies and questionable behaviour, but was tainted by outright deception. [emphasis added]
The consensus among media and legal academics was generally that Horkins J. was wrong – if not in his verdict, than in his stated reasons for it. Joshua Sealy-Harrington (a moderate, I suppose; others would probably call for Horkins’ immediate firing) accuses Horkins J. of making “genuine mistakes.”
Sealy-Harrington says, “In other words, Justice Horkins declines the harder position that these complainants lied about being assaulted and adopts the softer position that, due to their inconsistencies, the veracity of their claims of assault is not beyond reasonable doubt – a reasonable conclusion based on the record before him, and a conclusion that carefully delineates the dishonesty he is actually identifying in his reasons.” Technically, he’s correct – Horkins J. did not call them actual liars about everything (I suppose he wanted to keep his job), but he came pretty darn close to it, actually. Further:
It is undeniable that Justice Horkins’ description of this behaviour as “odd” is rooted in the stereotype that credible sexual assault victims avoid their abuser at all costs after an assault (even though the contrary has been consistently documented in the context of sexual abuse, and even though such an expectation surely imposes absurd expectations on women assaulted by their ongoing partners (see here and here).
No, actually. It has nothing to do with stereotypes; everything to do with lies.
Of course, irresponsible media and legal academics and practitioners fell over themselves in their rush to condemn the acquittals, some using reserved language, like Sealy-Harrington (while most did not). Surprisingly, Prof. Elaine Craig (perhaps the least responsible academic of the self-proclaimed “experts”) did not criticize the judgment in her book, although she was as big a proponent for the atrocious legislation that arose from it as anyone else. If the judge was in Alberta, I assure you there would have been a Crown complaint about him.
Alice Woolley (previously an academic, and now a justice in Alberta – a former professor of mine and actually a decent person) criticized the judgment too. What is consistently and conspicuously absent from all of this “analysis” is the presumption of innocence, which I understand has not yet been classified as a rape myth (not that I should give the SCC and Parliament any more bright ideas). And no, it was not the prosecutors’ fault that the complainants lied through their teeth – what may be their fault is the prosecutors not seeing that sooner and failing to stay the proceedings when they did. Clearly, blaming the prosecutors in this case (or the judge or defence, what have you) is necessary (“Further, it allows the lawyer to help ensure that the witness gets to provide her testimony, and that she will not end up looking like a liar when she is telling the truth”). Bollocks!