ONTARIO COURT OF JUSTICE
CITATION: R. v. Ghomeshi, 2016 ONCJ 155
DATE:
2016·03·24 COURT FILE No.: Toronto 4817
998 15-75006437
B E
T W E E N :
HER MAJESTY THE QUEEN
— AND —
JIAN GHOMESHI
Before Justice
William B. Horkins
Heard on February 1 through February 11,
2016 Reasons for Judgment
released on March 24, 2016
Michael Callaghan and
Corie Langdon
.................................. counsel for the Crown Marie
Henein, Danielle Robataille and Samuel Walker ..... counsel
for the accused
HORKINS, W. B., J.:
[1] Jian Ghomeshi is
charged with five criminal offences
relating to four separate
events, involving
three different complainants. Two of the complainants are shielded from identification
and so I
refer to the complainant
in counts 1 and 2 by the initials L.R. and the complainant in count 5 by
the
initials S.D.
[2] The
charges with respect to
L.R. are two counts of sexual assault. The first assault is alleged to have occurred between December 1st and
31st, 2002 and the second assault on
January 2nd, 2003.
[3] The charges with respect
to
Lucy DeCoutere are sexual assault and overcoming resistance to sexual assault by choking.
These events
were originally
NOTE: This judgment is under a publication
ban described in
the WARNING page(s)
at the start of this
document. If the
WARNING page(s)
is (are) missing,
please contact the court
office.
alleged to have occurred between the 27th of
June and the 2nd of
July 2003 but this has since been amended to conform to the
evidence that the events occurred
between
the 4th and 6th of July 2003.
[4] The charge with respect to S.D.
is sexual assault. This was originally alleged to have occurred between the 15th and 20th
of July 2003. This
has now been amended to conform
to
the evidence that the event occurred between the 15th of July and the 2nd of August 2003.
The Elements of the Offences
[5] A criminal "assault" is
an
intentional application of force
to
the person of another
without that person’s consent. A
"sexual assault"
is an assault committed
in sexual circumstances such
that the sexual integrity
of the victim is violated. The test
to determine if an assault
is "sexual" is an objective
one.
This test asks whether
the sexual nature of the contact would be apparent to a
reasonable person
when viewed in light of
all of the circumstances. The actual intent of the accused
is only one factor
amongst many that may
determine if
the
conduct involved is "sexual".
[6] "Sexual assault" as
defined in our Criminal Code covers a
very
broad spectrum of offensive activity;
everything from an uninvited sexual touching to a brutal
rape
falls under
the one title of "sexual
assault". The events
as described by each
of the
complainants, taken at face
value, fall within this broad
definition. Each allegation
of violence occurred in an intimate situation.
[7] With respect to the
complainant Lucy DeCoutere, there is
an
added charge of choking
with intent to overcome resistance. This offence is committed
when a perpetrator attempts to
choke the victim with the
intent of facilitating
the commission of an offence; in this instance, a sexual
assault.
[11] Each
charge presented against Mr.
Ghomeshi is based entirely on the evidence of the complainant. Given the nature of the allegations this is
not unusual or surprising;
however it
is significant because, as a
result, the judgment of this Court
depends entirely on an assessment of the credibility
and the reliability of each
complainant
as a witness.
[92] In her email correspondence
with one of
the other complainants, exchanged after the charges were laid, Ms.
DeCoutere expressed strong
animosity towards Mr.
Ghomeshi. She said she wanted to see that Mr. Ghomeshi was "fucking decimated" and stated, "the guy's a shit show, time to flush"; and then very bluntly just,
"Fuck Ghomeshi."
[93] All of the extreme animosity expressed since
going public with her complaint in 2014 stands in stark contrast
to the flirtatious correspondence and interactions
of 2003 and 2004,
words and actions that are
preserved in
the
emails and photographs
she says she forgot about.
[94] 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.
Possible Collusion
[107] S.D. said that her decision to come forward was
inspired by others coming
forward in 2014. She consumed the
media reports and spoke
to others for about six weeks
after the “Ghomeshi Scandal” broke in
the
media. Although she initially testified that she
and Ms. DeCoutere never
discussed the details
of her
experience prior to her police interview, in
cross-examination she admitted that in fact she had.
[108] I am alert to the danger
that some of this outside influence and information may have been imported
into her
own admittedly imprecise recollection of her
experience with Mr. Ghomeshi.
[109] 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.
[110] The team bond between Ms. DeCoutere and S.D. was strong. They discussed witnesses,
court dates and meetings
with the prosecution.
They described
their partnership as being “insta sisters”. They shared a
publicist. They initially shared the same
lawyer. They spoke
of together building a
“Jenga Tower” against
Mr. Ghomeshi. They expressed their top priority in the crude vernacular that
they sometimes employed, to “sink the prick,… ‘cause he’s a fucking piece of shit.”
Similar Act Evidence
[127] Similar act evidence is
presumptively inadmissible. Evidence of an accused's
alleged propensity
to commit
the particular type of crime with which he is charged with is inadmissible. The Crown expressly agreed
that each complaint contained
in the Information before the Court must be determined on its own merits.
[131] There is no legal bar to convicting on the uncorroborated
evidence of a
single witness. However, one of the challenges
for the prosecution
in this case is that the allegations against Mr. Ghomeshi
are supported by nothing in addition to
the complainant’s word. There is
no other
evidence to look to determine
the truth. There is no tangible evidence.
There is
no DNA. There is no "smoking gun".
There is only the
sworn evidence of each complainant, standing on its own,
to be measured against a
very exacting standard of proof.
This highlights the importance
of the assessment of the credibility and the reliability
and the overall quality, of that evidence.
[133] Ultimately my assessment of each of the counts
against the accused turns entirely
on the assessment of the reliability and credibility of the
complainant, when measured against the Crown’s burden of proof. With respect to each charge,
the
only necessary
determination is
simply this: Does the
evidence have sufficient quality and force
to
establish the accused’s guilt beyond
a reasonable doubt?
[135] As I have stated
more than once, the courts must be very cautious in assessing
the evidence of complainants in
sexual assault
and
abuse cases. Courts
must guard against applying
false stereotypes concerning the expected conduct
of complainants.
I have a firm understanding
that the reasonableness of reactive human
behaviour in the dynamics
of a relationship can be variable and
unpredictable. 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.
[136] Each complainant in this case engaged in
conduct regarding Mr. Ghomeshi, after
the fact, which seems out of harmony with the assaultive behaviour
ascribed to him. In many instances,
their conduct and comments were even
inconsistent with the
level of animus exhibited by each
of
them, both at the time
and then years later. In
a case
that
is entirely dependent on the reliability
of their evidence standing alone, these are factors
that cause me
considerable
difficulty when asked to accept their evidence at
full value.
[137] 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.
[138] 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.
[139] The
harsh reality
is that once a witness has been shown to be deceptive and
manipulative in giving their
evidence, that witness can
no
longer expect the Court
to consider them to
be a trusted source of the truth. I am forced
to
conclude that it is impossible for the Court to have sufficient faith in the reliability or sincerity of these
complainants. Put simply, the volume of
serious deficiencies in the evidence
leaves the Court with a reasonable
doubt.
[141] I have no hesitation in concluding that the quality
of the evidence
in this case is incapable of displacing
the presumption
of innocence. The evidence fails to prove the allegations
beyond a reasonable doubt.
WARNING:
The court hearing this matter directs
that
the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding
has been issued
under subsection 486.4(1) of the Criminal Code.
This subsection
and subsection 486.6(1) of the Criminal
Code,
which is
concerned with the consequence
of failure to comply
with an order made under subsection
486.4(1), read as follows:
486.4
Order restricting publication — sexual offences.—(1) Subject to subsection (2), the presiding judge or justice may make
an order directing that any information that could identify the complainant or
a witness shall not be published in any document or broadcast or transmitted in
any way, in proceedings in respect of
(a)
any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159,
160,
162, 163.1, 170, 171,
172, 172.1, 173, 210, 211, 212, 213, 271,
272, 273, 279.01,
279.02, 279.03, 346 or 347,
(ii)
an offence under section 144 (rape),
145 (attempt to commit
rape), 149 (indecent assault on female),
156 (indecent assault on
male) or 245 (common assault) or subsection 246(1)
(assault with intent) of the Criminal
Code, chapter C-34 of the Revised Statutes of Canada, 1970,
as it read immediately before January 4, 1983, or
(iii)
an offence under subsection 146(1) (sexual intercourse with a female under
14) or (2) (sexual intercourse with
a female between 14 and 16) or
section 151 (seduction of a female
between 16 and 18), 153
(sexual intercourse with step- daughter),
155 (buggery or bestiality),
157
(gross indecency),
166 (parent or guardian procuring
defilement) or 167
(householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes
of Canada, 1970, as it read immediately before January 1, 1988; or
(b)
two or more offences being
dealt with in the same proceeding, at
least one of which is an offence referred
to in any of subparagraphs (a)(i) to
(iii).
(2)
Mandatory order on application.— In proceedings in respect of the of- fences
referred to in
paragraph
(1)(a) or (b), the
presiding judge or justice shall
(a)
at the first reasonable opportunity, inform any
witness under the age of eighteen years and the complainant of the right to
make an application for the order; and
(b)
on application
made by the complainant, the prosecutor or any
such witness, make the order.
. . .
486.6
Offence.—(1) Every person who fails to
comply with an order made
under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
