Not Guilty
http://www.theglobeandmail.com/news...not-guilty-of-sexual-assault/article29377074/
http://www.cbc.ca/news/canada/toronto/jian-ghomeshi-judge-ruling-1.3504250
Once the accusers were on the stand, there was no doubt. Marie Henein did her job. Ontario Court Justice William Horkins spent 90 minutes reviewing each untruth the women told when testifying.
It's now on the National Post's website as a scribd document http://news.nationalpost.com/toronto/jian-ghomeshi-ruling
http://www.theglobeandmail.com/news...not-guilty-of-sexual-assault/article29377074/
http://www.cbc.ca/news/canada/toronto/jian-ghomeshi-judge-ruling-1.3504250
Once the accusers were on the stand, there was no doubt. Marie Henein did her job. Ontario Court Justice William Horkins spent 90 minutes reviewing each untruth the women told when testifying.
It's now on the National Post's website as a scribd document http://news.nationalpost.com/toronto/jian-ghomeshi-ruling
... Having said that, I have no hesitation in saying that the behaviour of this complainant is, at the very least, odd. The factual inconsistencies in her evidence cause me to approach her evidence with great scepticism.
[44]
L.R.'s evidence in chief seemed rational and balanced. Under cross examination, the value of her evidence suffered irreparable damage. Defence counsel's questioning revealed inconsistencies, and incongruous and deceptive conduct. L.R. has been exposed as a witness willing to withhold relevant information from the police, from the Crown and from the Court. It is clear that she deliberately breached her oath to tell the truth. Her value as a reliable witness is diminished accordingly
[60]
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. I can understand being reluctant to mention it, but I do not understand her thinking that it was not relevant.
[61]
Ms. DeCoutere remembered and reported minute details of their date: what Mr. Ghomeshi ordered at the restaurant; how he organized his shirts; that the temperature of his house was perfect; and that fresh flowers were on the table. All this was memorable and remarkable, yet she claimed to have left out the kissing and the cuddling because she thought brevity and succinctness were important. I do not accept this as a credible explanation.
[62]
Ms. DeCoutere repeatedly stated that Mr. Ghomeshi’s suggestion about lying down together and listening to music was creepy, cheesy or otherwise unappealing. It made her instantly uncomfortable. However, five days later, when she penned him a “love letter”, she wrote, “What on earth could be better than lying with you, listening to music and having peace?”
Inconsistencies in Recounting the Alleged Assault
[63]
Ms. DeCoutere told the police, under oath, that her recollection of the events that took place at Mr. Ghomeshi’s house was “all jumbled”. She told them that at a certain point she and Mr. Ghomeshi started kissing but, “I don’t remember the order of events.” She was not sure whether the choking or the slapping came first. However, when she spoke to the Toronto Star a few days prior to her police interview, she said that it was choking and then slapping. When she spoke to the CTV, she was not sure about the order. At trial, for the first time, she gave a clear and specific sequence of events: a push up against the wall; two slaps; a pause, and then another slap. She acknowledged in cross examination that this was, again, another new or different version of the events.
[64]
An inability to recall the sequence of such a traumatic event from over a decade ago is not very surprising and in most instances, it would be of little concern. However, what is troubling about this evidence is not the lack of clarity but, rather, the shifting of facts from one telling of the incident to the next. Each differing version of the events was put forward by this witness as a sincere and accurate recollection.
[65]
When a witness is comfortable with giving differing versions of the same event, it suggests a degree of carelessness with the truth that diminishes the general reliability of the witness.
Disclosure of an Ongoing Relationship
[66]
Lucy DeCoutere swore to the police that after the alleged assault in 2003 she only saw Mr. Ghomeshi “in passing”. She was polite to him, only because she did not want to jeopardize her future professional prospects. She “didn’t pursue any kind of relationship” with him. Ms. DeCoutere was asked directly by the police interviewers to tell them everything about her relationship with Mr. Ghomeshi, before and after the alleged assault.
[67]
It became clear at trial that Ms. DeCoutere very deliberately chose not to be completely honest with the police. Her statement to the police was what initiated these proceedings. This statement was subject to a formal caution concerning the potential criminal consequences of making a false statement. It was given under oath, an oath to tell the truth, the whole truth and nothing but the truth, not a selective version of the truth. Despite this formal caution and oath, Ms. DeCoutere proceeded to consciously suppress relevant and material information. This reflects very negatively on her general reliability and credibility as a witness. It indicates a failure to take the oath seriously and a wilful carelessness with the truth.
[68]
On the evening of the second day of trial and just before Ms. DeCoutere was set to testify, her lawyer approached Crown counsel with a question. If there was more to the post
-
assault relationship between Ms. DeCoutere and Mr. Ghomeshi than what had already been disclosed, would the Crown be interested in knowing about it? I can only imagine Crown counsel’s reaction.
[69]
A further formal, sworn police statement was taken from Ms. DeCoutere and then disclosed to the defence. This new statement disclosed for the first time the fact that Ms. DeCoutere sent flowers to Mr. Ghomeshi days after the alleged choking. It disclosed for the first time that she and Mr. Ghomeshi spent a considerable amount of time together in Banff in 2004. She also acknowledged that there were additional emails between them. All of this was deliberately withheld by Ms. DeCoutere up until this point in time.
[70]
I do not accept that Ms. DeCoutere could have sincerely thought that all this was inconsequential and of no interest to the prosecution. She may have been afraid to disclose this information. She may have been embarrassed to disclose this information. These would not be unreasonable feelings; but to say that she decided not to disclose this information because she thought it was of no importance is just not credible.
[71]
To make matters worse, when given this last minute opportunity to make full disclosure, she still failed to do so.
Additional Deception Revealed in Cross
-
examination
[72]
In an effort to explain to the Court her continued socializing with Mr. Ghomeshi following the alleged choking incident and over the rest of the 2003 Canada Day weekend, Ms. DeCoutere testified that she wanted to “normalize” the situation and “flatten the negative”, and to not make him feel like a bad host. So, she stuck with their plans and she continued to see him over the weekend. She testified that she kept her distance and certainly did not do anything intimate with him. Having firmly committed herself to this position, she was then confronted with a photograph of herself cuddling affectionately in the park with Mr. Ghomeshi the very next day.
Banff 2004
[73]
Ms. DeCoutere’s new disclosure included, for the first time, information about her contact with Mr. Ghomeshi at the 2004 Banff festival, including the “Hit Me Baby One More Time” karaoke duet. She attempted to explain the last minute timing of this disclosure as being the “first chance” that she felt she had to tell anyone. I find this explanation unconvincing coming from a witness who had been interviewed dozens of times prior to trial, had established a continual flow of email correspondence with the investigating police, and who had her own lawyer involved in the case for a year and a half leading up to the trial. If she truly intended to provide this information, she had ample means and opportunity to do so.
[74]
After the 2004 Banff festival, Ms. DeCoutere sent Mr. Ghomeshi a photograph of their Banff Springs “Hit Me Baby One More Time” karaoke performance with the caption “proof that you can’t live without me.” When confronted in cross examination with this photograph and the “playful” caption, her explanation was that this was part of an effort to make Mr. Ghomeshi “less of an assaulter and more of a friend.” This explanation lacks credibility when combined with the further details brought out in cross
-
examination about the Banff 2004 visit.
[75]
In advance of going to Banff, Ms. DeCoutere emailed Mr. Ghomeshi and told him that she wanted to “play” with him when they were in Banff. She suggested that maybe they would have a “chance encounter in the broom closet.” The response from Mr. Ghomeshi was expressly non
-
committal, “I’d love to hang but can’t promise much.”
[76]
Ms. DeCoutere emailed back to Mr. Ghomeshi saying she was going to “beat the crap” out of him if they didn’t hang out together in Banff and that she would like to “tap [him] on the shoulder for breakfast.” This correspondence paints a suggestive picture. It reads as if Ms. DeCoutere was, at that point in time, clearly pursuing Mr. Ghomeshi with an interest in spending more time together.
[77]
A natural assumption might be that what was actually stopping Ms. DeCoutere from sharing all of this undisclosed information, was the fear that to some audiences this post event socializing would reflect badly on her claims that this man had in fact assaulted her.
[78]
Had she genuinely feared that this sort of thinking would unfairly undermine her credibility, that concern might have been an explanation worth giving careful consideration. However she offered an entirely different explanation for supressing this information.
[79]
Ms. DeCoutere said her plan was to disclose all of these things once the trial began. She said that she had always intended to reveal this information but thought that the trial would be her first chance to do so. With respect, that explanation seems unreasonable to me. Ms. DeCoutere had literally dozens of pre
-
trial opportunities to provide the full picture to the authorities. I suspect the truth is she simply thought that she might get away with not mentioning it.
The Flowers
[80]
Another item in the new disclosure statement was the information that Ms. DeCoutere sent flowers to Mr. Ghomeshi following the Canada Day weekend in Toronto. Within days of when she says she was choked by Mr. Ghomeshi, she sent him flowers to thank him for being such a good host. Sending thank you flowers to the man who had just choked you, may seem like odd behaviour. I acknowledge that this might be part of her effort, as she said, to normalize the situation. However, whether or not this behaviour should be considered unusual or not, this was very clearly relevant and material information in the context of a sexual assault allegation. The deliberate withholding of the information reflects very poorly on Ms. DeCoutere’s trustworthiness as a witness.
The Undisclosed Evidence of a Continued Relationship
[81]
I find as a fact that Ms. DeCoutere attempted to mislead the Court about her continued relationship with Mr. Ghomeshi. It was only during cross
-
examination that her expressed interest in a continuing close relationship was revealed.
[82]
Ms. DeCoutere testified that after the weekend in Toronto in July 2003, she definitely knew that she did not want to have a romantic relationship with Mr. Ghomeshi. She gave us her “guarantee” under oath that she had no romantic feelings for Mr. Ghomeshi. Even in her late disclosure, just prior to taking the stand, Ms. DeCoutere claimed that any personal contact with Mr. Ghomeshi following the Canada Day long
-
weekend in 2003 was simply an attempt to "flatten out [her] negative." She maintained that any emails that she sent to Mr. Ghomeshi following that weekend were "indifferent" in tone and not "playful", as they had been previously.
[83]
Once again this was simply not true. In an email sent just two weeks later, on July 17, 2003, Ms. DeCoutere told Mr. Ghomeshi that he was “magic”. On July 25, 2003, three weeks after the alleged assault, she wrote to Mr. Ghomeshi that she was “really glad to know you”. On April 6, 2004, she wrote an email to Mr. Ghomeshi suggesting help with “an itch that you need… scratching”. On October 19, 2005, she sent him what she described herself as a “ridiculous, sexualized photo” of herself with the neck of a beer bottle in her mouth simulating an act of fellatio. As recently as September 8, 2010, she posted a Facebook message fondly recalling the 2003 Canada Day weekend.
[84]
On July 5
th
2003, within twenty
-
four hours of the alleged choking incident, Ms. DeCoutere emailed Mr. Ghomeshi with the message: “Getting to know you is literally changing my mind, in a good way. You challenge me and point to stuff that has not been pulled out in a very long time. I can tell you about that some-time and everything about our friendship so far will make sense. You kicked my ass last night and that makes me want to fuck your brains out, tonight.”
There is not a trace of animosity, regret or offence taken, in that message.
[85]
Five days after the alleged choking assault, Ms. DeCoutere was home in Halifax and she sent a hand written love letter to Jian Ghomeshi. She expressed her regret that she and Mr. Ghomeshi had not spent that night together. The letter concludes, “I love your hands.” When confronted with this seemingly incongruous message, from someone who claims to have been recently choked by the recipient’s hands, she said that she was intentionally referencing the thing that had hurt her.
[86]
Ms. DeCoutere attempted to explain this correspondence as an effort at “flattening the negative” or normalizing a relationship. I acknowledge that the Court must guard against assuming that seemingly odd reactive behaviour of a complainant necessarily indicates fabrication. However, this is an illustration of the witness’s actual behaviour, evidenced by her own written expressions. 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.
[87]
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.
[88]
In trying to reconcile the apparent disconnect between Ms. DeCoutere’s evidence and some of the established facts, another perhaps more subtle but related concern needs to be identified. It may be entirely natural for a victim of abuse to become involved in an advocacy group. However, the manner in which Ms. DeCoutere embraced and cultivated her role as an advocate for the cause of victims of sexual violence may explain some of her questionable conduct as a witness in these proceedings.
[89]
On December 9, 2014, she told S.D., that she, Ms. DeCoutere, the professional actor, was excited for the trial because it was going to be “…theatre at its best.” “…Dude, with my background I literally feel like I was prepped to take this on, no shit.” “…This trial does not freak me out. I invite the media shit.”
[90]
Ms. DeCoutere engaged the services of a publicist for her involvement in this case. She gave 19 media interviews and received massive attention for her role in this case. Hashtag “ibelievelucy” became very popular on Twitter and she was very excited when the actor Mia Farrow tweeted support and joined what Ms. DeCoutere referred to as the “team”. In an interview with CTV news, Ms. DeCoutere even analogized her role in this whole matter to David Beckham’s role as a spokesperson with Armani.
[91]
I have to consider whether as a member of this “team”, Ms. DeCoutere felt that she had invested so much in being a “heroine” for the cause that this may have been additional motivation to suppress any information that, in her mind, might be interpreted negatively. I do not have sufficient evidence to conclude that this was in fact a reason for suppressing evidence, but in light of the amount of compromising information that she wilfully attempted to supress, it cannot be ignored as a live question.
[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.
THE EVIDENCE OF MS. DUNSWORTH [95]
Ms. Dunsworth, a close friend of Ms. DeCoutere, gave a sworn statement to the Halifax police in November of 2015 in which she stated that at some point, about ten years ago, Ms. DeCoutere spoke to her about a choking incident that had occurred while she was on a date with Mr. Ghomeshi. Ms. DeCoutere wondered if her friend agreed that it was "weird". This evidence was tendered for the very limited purpose of offsetting any implied allegation of "recent fabrication" that may have arisen from the cross
-
examination of Ms. DeCoutere.
[96]
Shortly before Ms. Dunsworth was interviewed by the police, Ms. DeCoutere contacted her to advise her that the police needed to speak to her. She told her friend that she had already advised the police that she had told Ms. Dunsworth “AGES ago”, (in capital letters for emphasis I assume) about what had happened with Mr. Ghomeshi. She added, “It makes me look like I am not a copycat…". The response from Ms. Dunsworth was, "corroborate ha ha" … "ya, no prob".
[97]
At the time that this evidence was tendered, I admitted it into evidence because I was concerned that it might ultimately be inferred that the complaint was fabricated in 2014. To be clear, this was my concern at the time. Counsel for the accused did not make an express allegation of "recent" fabrication in this case.
[98]
The rule of evidence against the admissibility of this sort of earlier statement of a witness is a rule against "self corroboration". Having spoken of something similar a decade ago does not make the present allegation anymore true or false. The fact of the earlier discussion simply offsets any inference that it was fabricated in 2014. Being consistent is a trait that can be common to either the truth or a lie, and so is logically no more probative of the substance of the evidence at trial being true or being false.
[99]
Ms. Dunsworth’s evidence places Ms. DeCoutere's private complaint well before the public events of 2014. Apart from this limited use, the evidence is of little assistance with respect to the general veracity of Ms. DeCoutere's evidence at trial.
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.”
The Last Minute Disclosure
[111]
S.D. met with Crown counsel five times in the year prior to the trial of this matter. On each occasion she was reminded of the need to be completely honest and accurate. At no time until almost literally the eve of being called to the witness stand did she reveal the whole truth of her relationship with Mr. Ghomeshi. The most dramatic aspect of S.D.’s evidence was her last minute disclosure to the prosecution of sexual activity with Mr. Ghomeshi on a date following the date of the alleged assault in the park.
[112]
It is now apparent that in her initial interviews, S.D was putting forward her non
-
association with Mr. Ghomeshi after the assault, as evidence that she had reason to fear him. She said that she “always kept her distance” from Mr. Ghomeshi. She felt unsafe around Mr. Ghomeshi. In her statement to the police she acknowledged that she went out a couple of times with Mr. Ghomeshi after the alleged assault but underscored that it was always in public. She told the police that “the extent of it is, we’re going to be in public.” They went to a bar and they had a dinner date.
[113]
At trial, a very different truth was revealed. After meeting with Mr. Ghomeshi at a bar, in public, she took him back to her home and, to use her words, they “messed around”. She gave him a “hand job”. He slept there for a while then went home. This of course was dramatically contrary to her earlier statement that she “tried to stay in public with him” and keep her distance. S.D. acknowledged that her earlier comments were a deliberate lie and an intentional misrepresentation of her brief relationship with Mr. Ghomeshi.
[114]
S.D.’s decision to supress 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.
[115]
S.D. claimed that she did not think it was important to disclose this intimate contact and said she wasn’t “specifically” asked about post
-
assault sexual activity with Mr. Ghomeshi. She ultimately acknowledged that she left out things because she felt it didn’t fit “the pattern”. And when pressed further in cross
-
examination, she said that she did not think that what had happened between them at her home qualified as “sex”.
[116]
On February 25, 2004, more than six months after the alleged assault in the park, S.D. sent Mr. Ghomeshi an email which included her asking him, “Still want to have that drink sometime?” These are not the words of someone endeavouring to keep her distance.
[117]
When S.D. decided to make this disclosure, the other two complainants had already given evidence and had been seriously embarrassed when police complaint the week prior to trial and at that time offered no additions, qualifications or corrections. She says that she inadvertently heard something on the radio about emails being presented to the other complainants. She realized at that point that everything was going to come out and that it was time to disclose the true extent of their relationship.
[118]
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.
[119]
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.
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