Former CBC host has been acquitted of one charge of choking to overcome resistance and four charges of sexual assault related to three women.
At the end of his 90-minute verdict, where he largely shredded the credibility of the three women, Ontario Court Justice William Horkins was clear that he is not saying “these events never happened.” Instead, the “inconsistencies, questionable behaviour” and the “outright deception” of the court by the three witnesses tainted their evidence.
“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,” Horkins said.
“At the end of this trial, a reasonable doubt exists because it is impossible to determine, with any acceptable degree of certainty or comfort, what is true and is false.”
Outside in the rain, in the normally calm corner of Bay and Queen Sts., where the Old City Hall court sits, tweets of the ruling fuelled an already loud and angry protest.
Inside the hushed courtroom, Ghomeshi’s reaction was subdued. He hugged his mother and sister and shook hands with other family members sitting in the front row before leaving with his lawyers.
As the three complainants filed out of the courtroom, they had tears in their eyes.
Ghomeshi faces one remaining charge of sexual assault, to be dealt with at a separate trial in June. His bail conditions remain unchanged, a spokesperson for the Ministry of the Attorney General said.
Ghomeshi was the host of CBC Radio’s Q until the fall of 2014. That’s when CBC executives were shown a video depicting bruising on a woman Ghomeshi had dated, apparently caused by a cracked rib. CBC fired Ghomeshi and he responded with a Facebook posting telling the world that everything he has done sexually was with consent.
He acknowledged that his practices in the bedroom may be “strange, enticing, weird, normal, or outright offensive to others. We all have our secret life.” An ongoing Star investigation eventually detailed allegations from 15 women. Three of them went to police after a public appeal from then-police chief Bill Blair urging victims to come forward.
The woman in the video that led to CBC terminating one of its top hosts never came forward to police.
In a statement issued after the verdict, a CBC spokesperson said the corporation stands by its decision to terminate Ghomeshi, which was unrelated to the charges and ruling in this trial. “Based on the evidence that came to our attention, Mr. Ghomeshi’s actions were not in line with the values of the public broadcaster nor with our employee code of conduct.”
In explaining the reasoning behind his decision, Justice Horkins went through the allegations from the three women: TV actor Lucy DeCoutere and two others whose identities are protected by a publication ban. In each case he noted how their initial testimony when being examined by the Crown was given in a forthright manner. One testified Ghomeshi yanked her hair very hard, then on another occasion punched her in the head multiple times. Another testified that Ghomeshi choked her, pushed her against the wall and slapped her three times. The third woman testified Ghomeshi briefly choked her. They all said the violence began without warning, with no consent.
It was on the “extensive and revealing” cross-examination by defence lawyer Marie Henein, Horkins said, that the credibility of the witnesses first dissipated, and then was damaged beyond repair.
All of their accounts of the sexual assaults “shifted” in the course of being told to the media, police and court, Horkins said.
The first woman to testify said she had a specific memory that she was attacked in a “love bug” — a yellow Volkswagen Beetle, which she said gave her the impression Ghomeshi was safe to be with. Ghomeshi did not own that car at the time.
That witness testified that after the alleged attack in Ghomeshi’s home she was traumatized by the sight or mention of the CBC host and did not contact him. After being confronted by the defence with two seemingly flirtatious emails, one with a bikini photo attached, sent a year after she says Ghomeshi was violent with her on two occasions, she said she sent them as “bait” to get him to explain his actions.
These were not emails she could simply have forgotten about, Justice Horkins said. While her explanation could be true, it is irreconcilable with her previous testimony that she wanted nothing further to do with him, he said.
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The third woman to testify said her assault, on a park bench, caused her to want to stay away from Ghomeshi and be with him only in public. A last-minute disclosure to police before she testified — that she had given him a “hand job” on an occasion after the alleged attack — troubled Justice Horkins. Not the act, he said, but because she only revealed the whole truth after previous witnesses were confronted with their own “dramatic non-disclosures.”
“The active suppression of the truth will be as damaging to (a witness’s) reliability as a direct lie under oath,” he said. He firmly dismissed her explanation that she did not know how to navigate the proceeding.
“(It) is really quite simple: tell the truth, the whole truth and nothing but the truth.”
With DeCoutere, Justice Horkins was alarmed that she did not disclose to police flirtatious behaviour and a love letter to Ghomeshi sent after the alleged attack, which included him choking her with his hands. In this handwritten letter, apparently kept by Ghomeshi for well over a decade, DeCoutere signs off saying, “I love your hands.”
Horkins said in his decision he does understand that the court must not rely on stereotypical models of how a victim of abuse will or should behave following an incident. This, he said, was not that.
“It is behaviour that is out of harmony with her evidence in-chief and her multiple pretrial statements to the media and to the police,” the judge said in his ruling.
Horkins suggested DeCoutere’s work as an advocate raises a possible explanation for her attempt to mislead the court: that she “invested so much in being a ‘heroine’ for the cause” that she was motivated to hide evidence that could be interpreted negatively.
In an with Chatelaine, DeCoutere said she genuinely does not remember writing the letter and emails sent shortly after the time that she said Ghomeshi choked and slapped her.
“Post-incident conduct — that term has come to haunt me. When I was concerned about emails with Jian, they were emails from before (the assault). I wasn’t even thinking about after, because I didn’t think it mattered — because it shouldn’t matter. Now I understand that it matters because it measures your memory. I didn’t know my memory was on trial.”
DeCoutere told the magazine that after giving her testimony, she felt like she had to “go up to every person in the world and apologize for ruining the case.”
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Towards the end of his ruling, Horkins said one of the challenges for the Crown in this case is that there is no evidence but the witnesses’ testimony, leaving the case to rest solely on their credibility and reliability. “There is no DNA,” he said. “There is no smoking gun.”
The allegations also dated back to a decade prior to reporting. “Memories tend to fade, and time tends to erode the quality and availability of evidence,” Horkins wrote.
Despite similarities between the complainants and their allegations, he was required to consider each charge separately, he noted.
In a brief address on the courthouse steps, Crown attorney Michael Callaghan said the prosecution team would take the long weekend to study Horkins’ decision and decide whether or not to appeal.
Henei, in a brief statement, said that “notwithstanding the unprecedented scrutiny and pressure, the case was determined on the evidence heard in a court of law. In our system of justice, that is what must happen in every case regardless of who is accused or what crime is alleged. That is precisely what occurred in this case.
“This has been a very long, exhausting and devastating 16 months for Mr. Ghomeshi. He will take time with his family and close friends to reflect and move forward from what can only be described as a profoundly difficult period in his life.”
The former CBC host left the court through the back door, offering no comment to the media.
Kevin Donovan can be reached at (416) 312-3503 or kdonovan@thestar.ca
