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 —
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.:
 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.
 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.
 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.
 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
 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".
 "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.
 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.
 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.
 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,
 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.
 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.
 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.
 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.
 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.
 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
 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.
 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.
 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?
 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.
 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.
 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.
 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.
 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.
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.