Judge William Horkins will deliver his ruling today in the Ghomeshi case. As soon as the hearing ends, the court will provide an electronic copy of the decision, which we should be able to upload into the blog.
Ghomeshi and his lawyers, Marie Henein and Danielle Robitaille, have just entered the courtroom.
While Ghomeshi typically greeted his family each morning of the trial, typically shaking his mother's hand, he has yet to walk over to them.
Ghomeshi has been speaking with one of his lawyers, Danielle Robitaille, since he sat down in court.
The complainants in the case have just arrived in the courtroom, sitting in the front row on the opposite side of Ghomeshi's family.
Judge William Horkins has entered the courtroom and will begin reading his decision momentarily.
He said it will take a little more than an hour to read the decision into the record.
Decision: Ghomeshi is charged with five separate offences connected to three different complainants.
The first complainant alleges two incidents happened in December 2002, while the other happened in early 2003, allegations which have resulted in charges of sexual assault.
One count of sexual assault and one count of overcoming resistance by choking relate to complainant Lucy DeCoutere, both of which are alleged to have happened in July 2003.
The fourth count of sexual assault is connected to an incident alleged to have happened between July and August 2003 connected to a third woman.
The judge explains that the definition of sexual assault can include anything from sexual touching to rape.
Horkins: "It's fair to say that in 2014, Mr. Ghomeshi had achieved celebrity status" then in 2014, CBC publicly terminated him in the middle of numerous allegations of sexual assaults.
"Each charge against Mr. Ghomeshi is based entirely on the evidence of the complainant." which is not unusual, but it's significant because the judgment of the court will then rely heavily on the credibility of the witness, Horkins said.
The first complainant first met Ghomeshi while working as a server at a party in 2002. She described Ghomeshi as charismatic and he seemed smitten with her, the judge said of the testimony.
Ghomeshi invited her to a taping of his show Play and then they had a drink with colleagues afterward. The witness recalled "certain small details of the evening, for example that he ordered a Heineken and, she, a gingerale."
DeCoutere and Ghomeshi met in 2003 at an arts conference in Banff, the judge recounts.
The pair exchanged emails for about a month and then made plans to meet in Toronto. They went to dinner at a restaurant, DeCoutere testified, in which she said Ghomeshi spoke very highly of himself.
She said she they then went to his home and Ghomeshi gave her a tour. He began kissing her, she said, and then choked and slapped her while this was happening.
She testified that she saw him later that weekend, but was not interested in him in a romantic way. She sent him flowers as a thank you for the weekend.
The judge said that DeCoutere's witness was then "vigorously challenged" under cross-examination and there was "last-minute disclosure" to police, despite having her own counsel to help her through the process and having regular communication with the investigating detective.
DeCoutere "insisted that her [new disclosure] was spontaneous" and had nothing to do with the fact that the previous complainant had been confronted with emails by the defence team.
DeCoutere admitted that prior to trial, she had not told police that she and Ghomeshi had kissed after the alleged assault that night.
Instead she told police that "nothing stuck in her memory," the judge recounted.
"It is difficult for me to believe that someone" who alleges they were choked during a sexual assault "that they would consider" the information that she kissed Ghomeshi afterward relevant. The judge said he can understand her reluctance not to disclose it, but not that she would believe she should not tell police.
He described it as not credible that she would feel the need to describe the flowers in Ghomeshi's home, about the organization of his shirts, and yet not feel it important to tell police that she kissed Ghomeshi after the alleged incident.
The judge also notes that there were inconsistencies in DeCoutere's sequence of events relating to the alleged assault -- in court that there was choking, two slaps, and a pause and then another slap.
"The inability to recall such a sequence of events from over a decade ago" would not normally be troubling, the judge said.
But what's troubling is that this witness's narrative shifted, the judge said, from what she told the media and from what she told the court.
"It suggests a degree of carelessness with the truth that diminishes the general reliability of the witness."
The fact that DeCoutere did not tell police abut her conduct and contact with Ghomeshi, something that the judge said is unlikely she could simply forget.
Ms. DeCoutere proceeded to consciously suppress information" and "a wilful carelessness with the truth."
The judge said she may have been "afraid or embarrassed" to disclose some of this information, but to say that she thought certain matters irrelevant makes her appear not credible.
And "to make matters worse" when DeCoutere was given the chance to disclose to police right before testifying she still did not reveal everything, the judge said.
DeCoutere attempted to explain "the last-minute timing" of this disclosure as realizing she would have no other opportunity to do so before trial, but the judge said he found that explanation "unconvincing" considering she had her own lawyer and regular emails with the police.
DeCoutere's emails to Ghomeshi which included a reference to a "chance encounter in the broom closet" "paints a suggestive picture" and said it appears she wanted to spend more time with him, horkins said.
Had DeCoutere not disclosed this information, and the rest of the emails, and said it was because she was embarrassed by it or concerned that it would make her seem less believable, that would be a different situation.
But, instead, she offered a very different narrative, saying she decided only to tell police what was relevant.
There's also a significant inconsistency between DeCoutere's avowed testimony to the Crown that she had no interest in pursuing a romantic relationship with Ghomeshi when, in fact, dozens of emails point to a very different reality, the judge said.
When describing an email sent hours after the alleged choking incident in which DeCoutere said he "kicked her ass last night" which made her "want to f--k him... Tonight."
"There is not a trace of animosity, regret, or offence taken," in that message, the judge said.
DeCoutere's behaviour in the emails is "out of harmony" with her testimony to the Crown and her interviews with the media and police.
It appeared she "tried to hide" this evidence and hoped it would not be unearthed, the judge said, which is something that seriously affects her credibility.
The judge also said that while it's normal for victims of violence to become involved with advocacy work, Horkins said the way in which she embraced this role may also have been because of the publicity it garnered her.
"I have to consider whether as a member of this team, Ms. DeCoutere felt she had invested so much in being a heroine for the cause that this may have been additional motivation to suppress any information that might in her mind, might be [accepted] negatively."
"All of the extreme animosity since going public ... seems to stand in stark contrast to the flirtatious correspondence [in] in 2003 and 2004," the judge said.
But it is the "suppression of evidence" that drive my concerns with the reliability of this witness, Horkins said. "It's difficult to have trust in a witness who engages in the selectively withholding of information.:
The judge is now reviewing the evidence from Sarah Dunsworth, whose identity is not protected, who spoke to police saying that DeCoutere told her "ages ago" about her allegations against Ghomeshi.
Dunsworth's evidence places the private complaint "well before the public events of 2014" but said that it does little to help bolster the truthfulness or reliability of DeCoutere's testimony at trial, Horkins said.
Horkins has now moved on to the third complainant, a woman who knew Ghomeshi through her work in the arts industry.
After a performance in a park, she and Ghomeshi "strolled to a baseball diamond" for privacy where they began kissing and he then squeezed her neck in a way so that they could not breathe.
She was not especially precise in the details of the assault in her initial account to police, the judge said.
"Some lack of precision is to be expected" when recounting events that occurred more than 10 years ago, Horkins said. But it needs to be clear that it's reliable, he said.
The judge describes the witness's testimony, in which the witness tries to describe what happened to her.
She struggles to say whether she was choked with one hand or two, whether Ghomeshi bit her at the time, and for exactly how long he would have had his hand -- or hands -- around her throat, revealed in the testimony the judge reads to the court in his decision.
"The extreme dedication to bringing down Ghomeshi is evidenced vividly" in the correspondence between the complainant and DeCoutere, the judge said. The vitriol in those 5,000 messages should make the court proceed with caution, Horkins said, as it became clear the two women were a team.
"The most dramatic part of the the complainant's testimony" was her late disclosure of having sexual interaction with Ghomeshi at her home on a night after the alleged choking happened, the judge said.
It's something that she chose not to reveal until just before she testified, Horkins said. And it's "a very different truth" than what was previous told in statements and "dramatically contrary" to her previous statements in which she said she tried to stay away from Ghomeshi and only stay with him in public.
She admitted under oath that she lied in saying that she only spent time with him in public, the judge said, something that's extremely damaging to her credibility as a witness.
Judge said it was clear that the third complainant had wilfully held back the truth about her conduct with Ghomeshi after the alleged assault and then, after listening to media, realized "she was about to run headfirst into the whole truth" at trial.
Horkins said that the witness explained that the witness tried to explain her behaviour away, saying that she told the court "this was her first kick at the can" and she didn't know how to navigate the court.
"Navigating this proceeding is really quite simple. Tell the truth, the whole truth and nothing but the truth."
It's difficult to see the complainants right now from my vantage point, but the first complainant's head is bowed at the moment.
The judge explains that a reasonable doubt must come from the evidence, the judge said. "You must remember it is virtually impossible to prove anything to an absolute certainty," the judge said.
If you are sure the accused is guilty you must convict, but if you have doubt -- or even think someone "is probably guilty" but are not quite certain -- you must acquit, Horkins said.
The judge said that each complainant articulated their own "very valid" reasons for not coming forward at the time of the alleged assaults, but instead when Ghomeshi was fired in 2014.
The first complainant has now lifted her head and is staring straight ahead, her lips set.
There are certain commonalities in the events recounted by the complainants, the judge said. Each person said they came forward after Ghomeshi was fired. Each is, in some ways, associated with the arts industry. Each had a brief relationship with Ghomeshi. And each said they experienced some violence during intimacy when involved with the accused, the judge said.
The Crown faces a difficult bar of proof to meet, the judge acknowledged. Because there's no "smoking gun," no physical evidence that the prosecution can point to in order to support the witnesses.
Instead, the court must rely solely on the word of the witnesses, Horkins said.
But it's clear that each witness was "less than full and frank" in their statements to media, police and the court.
Ghomeshi did not testify. Nor did the defence call any evidence, the judge notes.
This is something many members of the public emailed me about, asking why the Crown did not call him. I'd mentioned before, but it's worth stating again, that the accused has the right not to testify. And Horkins -- or any judge -- cannot hold that against them.
While case law says that the judge also cannot hold post-assault conduct against the complainants, the judge says that, in this case, their behaviour seems "out of harmony" with their statements in court.
"The twists and turns of the complainants' evidence in this trial illustrates the need to be vigilant" in order not fall into the assumption "that sexual assault complainants are always truthful," the judge said.
Their evidence was "tainted by outright deception" and once that happens that witness cannot "have sufficient faith" in the complainants and their truth.
