Jian Ghomeshi trial: Day 8

The prosecution will begin its closing arguments today in the Jian Ghomeshi trial, summarizing the testimony of the three women who allege the former CBC Radio host sexually assaulted them more than 10 years ago.

    Jian Ghomeshi's sexual assault trial has entered its last days. The prosecution will begin its final arguments at 10 a.m., with the defence to follow.

    It was unclear yesterday whether the Crown said he expected to wrap up his arguments within the day or whether both sides would be able to do so.
    ICYMI yesterday: 

    "I do think some survivors at home watching this will look at their behaviour both before and after the assault and believe that they don't stand a chance," says Erin Ellis, a lawyer who specializes in sexual assault cases in civil court. (Pam Davies) 

    Jian Ghomeshi trial: Accused won't testify, as closing arguments set for today

    The Crown in the sexual assault trial of Jian Ghomeshi will begin its final submissions today, as the defence team for the former CBC host chose not to present any evidence or call any witnesses, including their client, to testify in the case. (Nathan Denette/Canadian Press)


    LIVE BLOG: The Crown will submit its closing arguments at the #Ghomeshi trial today. cbc.ca/news/canada/to… http://pbs.twimg.com/media/Ca8Hj1SVIAETyr-.jpg

    There are roughly 70 people in the public line outside the courtroom. #Ghomeshi
    Crown attorney Michael Callghan says all three of the complainants' evidence satisfies the threshold to be considered a sexual assault.

    "It is in this context of sensual kissing that Mr. Ghomeshi pulls her hair in the car," the Crown says of the first complainant.

    DeCoutere, meanwhile, alleges she was choked and slapped while kissing.

    And the third complainant alleges she was choked and smothered while kissing on a park bench, he reminds the court.
    The Crown is now summarizing the evidence of each complainant.

    The first: Ghomeshi met the first complainant at a Christmas party in 2002. After a CBC Play taping, the complainant alleged that Ghomeshi pulled her hair "really, really hard" in his car.

    "It felt like there was a rage that wasn't there seconds before he did it," she told the court, the Crown recounts.

    The woman says that Ghomeshi then reverted back to the charming person she had first met and it caused her to question whether he had hurt her by accident.
    The next alleged assault occurred after another Play taping, this time in 2003. The complainant attended the taping with a friend, but they dropped her off at the subway before the complainant and Ghomeshi drove on to his Riverdale home, the Crown says.

    The two began kissing on the couch, then standing and kissing, when the accused suddenly pulled the complainant to the ground and hit her on the head three times, the Crown says. It felt like Ghomeshi used a closed fist, Callaghan recounted.

    "He threw her out like trash," the Crown says, quoting the witness.
    The Crown has begun recounting DeCoutere's evidence, now focusing on the first dinner they shared on July 4, 2003.

    After dinner on the Danforth they returned to Ghomeshi's Riverdale home, the Crown says. While there, they began kissing consensually -- but then the accused pushed her against the wall and choked her and slapped her twice, Callaghan recounts. The pressure was hard enough to cut off her ability to breathe, the Crown says.

    Ghomeshi looked at DeCoutere and then slapped her again, according to the witness's testimony.

    DeCoutere stayed for about an hour afterwards to try to "normalize the situation," the Crown recounts.

    "She just didn't feel like leaving was the right choice... She indicated she was a people pleaser [and] she was worried about angering [or] seeming not cosmopolitan in Mr. Ghomeshi's eyes."
    We've moved on to summarizing the third complainant's evidence.

    Ghomeshi and the third complainant met in 2003. After he came to see her performance, they found themselves kissing on a park bench in Toronto.

    "She felt, all of a sudden, his hands on her shoulder and his teeth on her neck and then his hands went around her neck and he was squeezing," the Crown says quoting the witness.

    She tried to get out of the situation when Ghomeshi put his hand over her mouth, making it difficult for her to breathe, the Crown says.

    The complainant continued to see Ghomeshi for a few weeks and testified that she later had one consensual sexual encounter -- she masturbated him -- after the alleged assault.
    There's been a lot of questioning on social media -- and through emails the CBC has received -- about why the Crown did not call a witness to talk about the effect that trauma can have on memory. The Crown spoke to that in his arguments.

    The Crown says that there's no need to call an expert witness to explain why some women disclose alleged assaults many years later, because case law already recognizes that trauma can affect someone's actions.

    The first complainant "didn't think she would be believed," the Crown said.

    DeCoutere thought she "had to be broken and raped."

    The third complainant went to police after she heard about other allegations "when she recognized a pattern and realized that what happened to her wasn't an isolated incident."
    Case law also recognizes that a sexual complainant's credibility should not be negatively affected if they choose to go to police much later than when the incident is alleged to have happened, the Crown said, quoting from an earlier decision.

    "In assessing the credibility of the complainant," the delay of disclosure or the fact that a complainant chooses to stay in a relationship with the accused, the Crown argues, cannot affect a witness's credibility.

    "Victims of abuse often, in fact, do not disclose it," Callaghan says. "And if they do it may not be until a substantial amount of time has passed."
    Complainants process alleged assaults in "their own unique" ways, the Crown says.

    You can see that in the different ways in which the three complainants responded to the alleged sexual assaults, he tells the court.

    The first complainant was panicked and still does not understand why this happened, the prosecutor said.
    DeCoutere, meanwhile, tried to normalize the situation and was "keenly aware" that she would see Ghomeshi again. She would "at times go overboard" to make sure there "was no negativity or weirdness" between them.

    The Crown says that reaction is consistent with how DeCoutere describes her personality.
    The final complainant continued to try to maintain a professional relationship with Ghomeshi following the alleged assault, because they were in the same industry.

    And because she did not want to appear "hysterical" by reporting nor harm the careers of her family members who could be affected by Ghomeshi's former power within Canada's arts and entertainment world.
    The crux of what the judge needs to consider is the meaning of credibility and reliability, the Crown says.

    "In assessing reliability" the judge should look for: confirmatory evidence, especially inconsistencies and contradictions.
    -- The idea that an abundance of detail may not necessarily mean a witness is reliable.
    -- Absence of evidence to support testimony.
    -- The concern that the influences of life and time may affect witness testimony.
    Credibility is different and the judge can give more or less weight to certain issues, the Crown says.
    The Crown points out that there was confirmatory evidence in the first complainant's testimony.

    - There's video evidence of her being at Play.
    - There's evidence supporting she was at the party at which she says she first met Ghomeshi in 2002.
    - And the Crown says that the issue of the "Disney car" the complainant thought Ghomeshi was driving -- but did not, in fact, lease until July 2003 -- should be excluded from the judge's mind. Ghomeshi was driving a subcompact car at the time and it may, in fact, have been yellow -- as she testified.
    While the first complainant could be considered less reliable because her memory "seemed to change" over time -- with respect to whether she was wearing hair extensions.

    The Crown says that the judge must remember that the complainant tried to push down these painful memories for many years.
    The Crown asks the judge whether "the differences significant" -- or is it possible that some of these inconsistencies are related to memory and not related to her credibility?

    One of those issues included two emails, which the complainant sent more than a year after the alleged assault, and a photo of herself in a bikini. She already told the court she had no other communication with Ghomeshi except perhaps an email she "drafted in anger" but did not believe she sent.

    "When confronted with these communications, the complainant presented an explanation" -- the bait issue -- "that is open to the judge to accept," the Crown argues.

    "I urge you to remember" what I said earlier in not relying on stereotypical assumptions about how victims should act, Callaghan said.

    The complainant's memories of the alleged sexual assaults remained both unchanged -- and unchallenged in cross-examination -- so the judge can consider giving weight to those statements, even if he chooses to reject other testimony as not credible, the Crown argued.
    The Crown says that DeCoutere spoke honestly about her first meeting with Ghomeshi, which can be supported with evidence.

    And while the defence may suggest that DeCoutere's less credible -- because she did not disclose all of the post-assault contact she had with Ghomeshi -- the Crown says it's important for the judge to remember that the complainant said, under oath, that she believed those communications were not relevant. The complainant thought police only needed to know about the time directly connected to the alleged assault, the prosecutor said.

    DeCoutere also genuinely did not remember all of the emails until she was presented with them in court, the Crown said, and then refreshed her memory.

    The defence may also try to cast doubt on DeCoutere's testimony because of the negative messages she and the other complainant sent one another about the accused. But the Crown said that these were two women who shared a negative experience and became "an informal support network" for one another.
    The third complainant was "candid" about what she did not recall, which means that the court should be more confident in relying on the evidence that she was able to recall, the Crown said.

    The witness remained clear in her description of the alleged choking, the Crown said.
    The defence put several inconsistencies between the third complainant's testimony and what was printed in Toronto Star article.

    But the Crown points out, now, that the complainant told the defence that she was misquoted in the article, something she also mentioned to police. And, seeing as the defence, did not call evidence to contradict that, the judge should not regard this as a true inconsistency, Callaghan says.
    Callaghan also re-iterates that the judge should not hold the communications between DeCoutere and the complainant -- which included comments about how they hoped Ghomeshi would had become fat, bald and would wet the bed every night -- against the women.

    "They were two friends venting about a shared experience," he said. "Given that the [messages] were written in that context" it's hard to see that they detract from the complainant's credibility.
    The Crown also said that the defence may try to undermine the credibility of the third complainant because she delayed disclosing the sexual encounter she had with Ghomeshi after the alleged assault.

    But the Crown says that she did, in fact, go to police before going to court -- and then explained to the court that she was embarrassed about it.
    "All three of the Crown's witness were unshaken in their allegations that they were sexually assaulted by Mr. Ghomeshi."

    The evidence on "those key points" was steadfast.

    And, with that, Crown attorney Michael Callaghan closes his case.
    Defence lawyer Marie Henein has asked for a 10-minute break before she delivers her closing arguments.

    She, Ghomeshi, and the entire defence team have just walked out of the courtroom.
    The defence is presenting its final arguments, with Danielle Robitaille beginning the arguments.
    She says she plans to present the judge with inconsistent testimony he should consider.

    The first of which concerns the first complainant and the alleged sexual assault in the car.
    "When speaking with the media she indicated that her hair was pulled by Mr. Ghomeshi out of the blue and it came at a time when she was not being intimate with Mr. Ghomeshi," she said.

    This was an account she provided to CBC.

    But when she spoke to police, while she initially said the same thing, but later conceded that the hair-pulling and kissing happened at the same time.

    She said the same thing under oath in court, but then added it was "sensual kissing," Robitaille said.
    "You'll recall there was another inconsistency," Robitaille said, with regard to the question that Ghomeshi asked her if "she liked that"

    The complainant "also not insignificantly could not recall her answer to that," Robitaille said. "Those inconsistencies go to the question whether the Crown has proved beyond a reasonable doubt whether [what occurred] in the car actually happened."

    Robitaille said these inconsistencies also question whether the Crown proved -- beyond a reasonable doubt -- that there was consent.
    Robitaille is now returning to the issue of hair extensions, something which was extensively covered at trial.

    In her initial police statement, the complainant said nothing about hair extensions, she then later emailed police to say that she was wearing them. In court, however, she said that was not the case and that she was not wearing extensions.
    Robitaille said there's also a concern about credibility because the witness recanted under cross-examination something that she told police in 2014 -- that Ghomeshi smashed her head against the car window.

    She later said that he head was resting against the window.
    "In terms of [the complainant's] account of what happened in the house," Robitaille said. "There was a full attack on the events at the house," despite the Crown's position that those allegations were not challenged.
    Robitaille reminds the judge that the defence asked the witness how she got to the ground -- that she said pulled and then thrown in the media -- and that she told police her memory "was a bit blurry" around that incident.

    The complainant did say that she had trouble remembering because she had been "hit so hard" it felt like walking into a pole.
    Robitaille: "This is a witness who has very detailed memories" of Ghomeshi's show, the weather, her clothing, Ghomeshi's colleagues that she met.

    "This is a witness who has very detailed memories of the events at the time period, but simply cannot come up with a coherent event of what happened in that house."
    Robitaille now tells the judge that the defence questions the way in which the witness characterizes the certain lapses in memory.

    She told the court that "her memory improves as she sits with it," the lawyer said. "But experienced trial judges know that memories don't get better over time."
    Robitaille is now raising the inconsistency between the fact that the witness found listening to Ghomeshi on the radio "so re-traumatizing" that she had to immediately turn it off.

    The lawyer says that the reason they are raising the fact that the complainant contacted Ghomeshi after the alleged assault has nothing to do with relying on stereotypes about how women should behave after an assault.

    Instead, Robitaille says, the defence is presenting this communication because it challenges the fact that the complainant said she never watched Ghomeshi again on TV.
    "I had to stay away, I couldn't listen to him, I couldn't watch him," Robitaille says, quoting the witness's police statement. "And what [the emails] prove is that explanation, that evidence to police was false."
    Robitaille says that while the complainant says she "might have drafted" an email while Q was airing, these were sent long before that show began.
    This witness's evidence that "I remembered reading these" which in my respectful submission is that the witness knew about the emails before she went into the witness box. She telegraphed that in her examination in chief, corrected Henein, and "let it slip that she had in fact remembered them."

    The important issue here for the judge, Robitaille says, is that the witness failed to disclose them and made an effort to conceal them from the court.

    The lawyer said it should give the court "grave concern" that the witness was not truthful in the court.

    "And in my respectful submissions, [this complainant's] evidence cannot be relied on at all."
    Robitaille has now switched to discussing the evidence surrounding the third complainant.

    She says there are significant concerns about this witness, because she listened to some media around the case and also exchanged 5,000 messages with Lucy DeCoutere.

    Robitaille also said that there should be some concern to the court that the complainant told the court, when asked by the Crown, that she did not discuss the details of the case.

    Under cross-examination, the complainant was presented with evidence showing that they had discussed the case, including other witnesses, meetings with the Crown and building "the Jenga tower" against Ghomeshi.
    Robitaille then tells the judge that the complainant's recollections of the alleged choking on the bench are "vague, they are uncertain," she said.

    The lawyer recounts that the witness told police Ghomeshi used one hand when choking her, yet in court said that he used two hands.
    Sorry, Robitaille is still speaking about the third complainant and looking at an email she sent Ghomeshi afterwards.

    The complainant described "keeping her distance" from Ghomeshi and only having "occasional run-ins" with him.

    Robitaille says the "language and tone" of the email stands in such stark contrast of the language she uses in slamming Ghomeshi with DeCoutere in their emails.

    Robitaille says "the intervening factor of Ms. DeCoutere" explains the difference between the friendly communication the woman had with Ghomeshi and her anger at him nearly 12 years later.
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