The judge presiding over the trial of Jian Ghomeshi says he will reserve his decision until March 24, after hearing extensive closing arguments from the Crown and the defence Thursday.
Forty-eight-year-old Ghomeshi has pleaded not guilty to four counts of sexual assault, and one count of overcome resistance by choking. He acknowledged in 2014 that he engaged in rough sex acts, but said it was consensual.
All three alleged victims sat in the courtroom as the closing arguments were presented.
The Crown’s closing argument
Crown lawyer Michael Callaghan said the allegations in this case are “clearly sexual assault,” due to his assertion that there was an intentional application of force without consent in a sexual context.
Callaghan carefully went over each allegation from the three complainants, beginning with the first alleged victim who cannot be identified due to a publication ban.
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She alleged that Ghomeshi had pulled her hair “hard” in 2003 in an unprovoked nature while the two were in his car, adding that it had “felt like a rage that wasn’t there a second before he did it.”
Callaghan highlighted allegations to the judge that the witness had seen a “change in his demeanour” and that Ghomeshi hit her three times with a “closed fist” and threw the witness “out like trash” and that she never consented to the alleged assault.
Lucy DeCoutere, a Trailer Park Boys actress and the second and only witness who can be identified, testified that she had been “pushed up against” a wall and slapped three times at Ghomeshi’s home in Toronto in 2003.
“She was never asked that she wanted to engage in this conduct,” Callaghan said.
“[DeCoutere] consented to the kissing but she was not able to consent to the choking or hitting.”
The third complainant, who also cannot be named under publication ban, testified that while she was kissing Ghomeshi in a park in 2003, he suddenly bit her shoulder and started squeezing her neck with his hands.
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Callaghan conceded the third witness did consent to a sexual act after the alleged incident, but stressed to Justice William B. Horkins that the post-assault conduct of the alleged victims should not be held against them because “individual personalities and life experiences” can affect why and when alleged victims come forward.
He added that the complainants decided to come forward only after hearing then-Toronto police chief Bill Blair’s call for alleged victims of sexual assault to come forward in November 2014.
Callaghan then highlighted the different ways in which the complainants reacted to the alleged assault, adding that DeCoutere’s reaction was that of trying to “normalize” the situation with Ghomeshi – which is why she contacted him repeatedly after the alleged incident.
He added that the first witness “was still left wondering” after the alleged assault by Ghomeshi so “she wrote him” to get him to provide an explanation and used “her body” as the only “commodity” she had, which is why she sent him a photo of her in a bikini.
Conversely, Callaghan said the third witness wanted to pretend the alleged incident with Ghomeshi didn’t happen, and especially didn’t want it to affect her family member’s career in the arts community.
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Callaghan put to Horkins that he could accept certain aspects of the witnesses’ testimony and reject other aspects based on his perception of their credibility and reliability.
He added that the first witness’ memory “solidified” over time, which is why her memory of the alleged event differed in statements to police, media and in her testimony.
Callaghan said there was no attempt by the first witness to fabricate her assertions and no evidence to contradict her claims that she was “misquoted” by Kevin Donovan of the Toronto Star.
The Crown lawyer also said that DeCoutere had a “clear recollection” during the period of time when the alleged sexual assault took place, but was “unclear” on issues that she saw “irrelevant” to the police investigation.
He added she made a “clear attempt to normalize relations” with Ghomeshi after the alleged incident with Ghomeshi, adding that she did not attempt to mislead court.
Callaghan: Inconsistencies were due to the ‘passage of time’
Callaghan classified the correspondence between DeCoutere and other alleged victims as that of a “shared experience” that was part of an “informal support group” with regard to the allegations against Ghomeshi.
He also characterized police testimony about a conversation from more than a decade ago between Trailer Park Boys actress Sarah Dunsworth and Decoutere about the alleged choking incident as a “powerful” rebuttal to the idea put forth by the defence that there was collusion in the case.
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With regard to the third witness, Callaghan said the alleged inconsistencies in her testimony were due to the “passage of time,” adding that the late disclosure of a sexual act with Ghomeshi after the alleged assault took place was due to the fact that she was “embarrassed by her error in judgment” and in no way “negates” the “fact” that the alleged sexual assault took place.
Callaghan finished his closing arguments by stressing that after carefully weighing the evidence presented in the trial within the context of the allegations, it was up to Horkins to decide if Ghomeshi can be convicted beyond a reasonable doubt.
The defence’s closing argument
Ghomeshi’s co-counsel Danielle Robitaille began the defence’s closing arguments by highlighting inconsistencies in the alleged victim’s statements to police, media and their testimony heard in court during the past eight days.
Robitaille focused on the perceived inconsistencies in the first witness’ allegations in regard to the alleged hair pulling incident, due to the fact that she told media the “kissing and the hair pulling were intertwined” during the alleged assault, but said in her testimony that the kissing was “sensual.”
She pointed to two inconsistencies in the complainant’s allegations; where she had said to police she may have been wearing hair extensions and later retracted that allegations and her perceived failure to adequately answer Ghomeshi’s questions of whether she enjoyed the hair pulling.
Robitaille also attacked the first witness’ claim that her head had been “smashed” against a window in Ghomeshi’s car, pointing out that they were not repeated in the account of her story to the media.
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Robitaille said the idea that the first complainant said she was “throwing thoughts” at police when she was recalling the details of the alleged attack in 2014 was cause for concern for Horkins in determining his verdict.
Robitaille said there were a “number of inconsistencies” in the first witness’ testimony, adding that she had “difficulty” providing a “coherent account of events” but had managed to recall seemingly insignificant details such as the weather, what drinks they had and guests on Ghomeshi’s show at the time.
She also said “memories don’t get better over time,” adding that the witness’ explanation of “sitting” with her memories did not assist Horkins in his determining a verdict.
She added that the assertion the first witness could not bear to listen to Ghomeshi on the radio, or the new host of his show Q, was disproven by emails sent after the alleged assault in which she said that she enjoyed listening to Ghomeshi and wanted contact with him that were not disclosed to police or the Crown.
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One detail that Robitaille said might have been missed in the defence’s cross-examination of the first witness was when she said “I remember reading these” in regards to emails she testified she had forgotten sending to Ghomeshi.
Robitaille stressed to Horkins that the witness “knew” about the emails before testifying and “let it slip” that she had previously read them. She added that the first witness’ alleged “effort to conceal them from the court” shows her evidence “can’t be relied on at all.”
She then shifted focus to the third witness, who Robitaille pointed out admitted in court that she had consumed media about the case after being instructed by police not to and had sent 5,000 back and forth with DeCoutere after testifying that the two had not spoken about the allegations against Ghomeshi.
She wanted to see him ‘cooked’
Robitaille said this was proven to be false because there were “specific details” in the correspondence between the third witness and DeCoutere on “all matters related to this case.”
She also urged the judge to consider the “animus” displayed by the third witness against Ghomeshi, which she said was evidenced by the idea she wanted to see him “cooked,” that she wanted “sink the prick” and show up to his bail hearing with popcorn and a “sh-t-eating grin.”
Robitaille said the third witness’ description of events was “vague” and “uncertain” after telling police Ghomeshi was “kind of squeezing” her neck, but later testifying that she was engaged in a “make out session” with Ghomeshi at the time.
She also highlighted the witness’ statement to police in December 2014 that she didn’t “really feel like there’s anything to press charges against” with regard to the alleged assault on a park bench by Ghomeshi.
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Robitaille also attacked the testimony of the third witness in which she said she had “kept her distance” with regard to subsequent contact with Ghomeshi, despite emails surfacing in court where she requested a drink with him and called him “princess” in a “friendly” email.
The co-counsel said the “tone” of the initial emails to Ghomeshi were in “stark contrast” to that of the description of Ghomeshi in the witness’ correspondence with DeCoutere, which Robitaille chalked up to “intervention” on behalf of DeCoutere.
Robitaille also said the recent “11th hour” admission by the witness of a sexual act with Ghomeshi after the alleged assault should raise questions in Horkins’ mind about the reliability and credibility of the witness.
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She added that the witness only conceded details about the alleged post-assault sexual act with Ghomeshi after hearing a newscast about emails arising in court last week.
Robitaille stressed that the third witness had told the police under oath that her interactions with Ghomeshi were only in public, adding “she lied” in her testimony about masturbating him after the assault.
She stressed in her closing arguments that it was not the defence’s position to attack the “post-assault conduct” of the alleged victims but simply to show that this witness had lied in her testimony.
Robitaille shifted her focus to DeCoutere and said that the new evidence brought forth in court on Wednesday from her friend Dunsworth “doesn’t make a lot of sense” and that her description of Ghomeshi trying to kiss her on a walk back to his home in 2003 was never disclosed to media or to police.
She urged Horkins to consider DeCoutere’s explanation that she thought Ghomeshi’s alleged attempts at kissing her were “inconsequential” and the idea that she thought “brevity and succinctness” we’re needed in her police statement.
‘Lingering romantic entanglements’
Robitaille then raised numerous incidences that contradicted DeCoutere’s claim she didn’t pursue any kind of relationship with Ghomeshi and had no “lingering romantic entanglements.”
Those examples included flowers she had sent to Ghomeshi after the alleged choking incident, a handwritten “love letter” she sent him five days later and an email sent just hours after the alleged incident in which she said she wanted to “f–k his brains out. Tonight.”
One line in the letter that the defence repeatedly highlighted, even making DeCoutere read aloud in court, was the phrase “I love your hands,” which Robitaille said was related directly to a preceding paragraph in which she said she was sad they didn’t spend the night together on the night of the alleged assault.
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Robitaille said the idea that DeCoutere wanted to pursue a friendship with Ghomeshi only arose after she was confronted with emails in court that contradicted her claims, adding she “continues not to be candid with the court.”
She added that DeCoutere’s “pattern of disclosure” in her testimony should be of grave concern to Horkins as he decides his verdict.
Ghomeshi’s defence lawyer Marie Henein then raised the overcome resistance by choking charge that Ghomeshi faces, adding the accusations didn’t meet the requirements of the charge including that the choking must render the victim insensible, unconscious or incapable of resistance. She also suggested the Crown “failed” to present enough proof of the charge.
‘The courtroom should not be a game of chicken’
She also said that the concept that women sometimes “will continue to interact with people who have abused them” was not “in play” in this trial, adding that the fact witnesses claimed they were not interacting with Ghomeshi after the alleged assaults were “not true.”
The witness’ claims of not being familiar with the legal system when providing statements under oath were also attacked by Henein, who added that the oath is presented in “simple language” to tell the truth, the whole truth and nothing but the truth.
Henein said Horkins could not rely upon the word of a witness who only tells “half truths” beyond a reasonable doubt in the determination of his verdict.
“This courtroom should not be a game of chicken,” Henein said, adding that Horkins should not set aside “ordinary scrutiny or common sense” when assessing the evidence heard in court.
“The inconsistencies you’ve heard are relevant,” she said, adding that the truth is found “between the lies.”
Henein added that DeCoutere’s comparison of her behaviour after the alleged assault to a domestic violence victim did not “hold water” because of the fact that there was no prior relationship between the two.
Henein finished her closing remarks by saying the “evidence in this courtroom falls so far short of proving anything beyond a reasonable doubt,” before calling for an acquittal of Ghomeshi on all charges.
Horkins has reserved his judgment until March 24, after which Ghomeshi will be convicted of all, some or none of the charges.
Ghomeshi will face a second trial in June on a separate charge of sexual assault, which arose from an alleged incident in January 2008 while he was the host of Q.