Before a packed courtroom on Thursday, Ontario Court Justice William Horkins will answer a question that’s hung in the air since one of Canada’s highest profile sexual assault trials wrapped six weeks ago: Will Jian Ghomeshi walk?
Horkins must decide whether the former CBC radio star is guilty of four counts of sexual assault and one of overcoming resistance by choking, or if there is enough reasonable doubt to warrant an acquittal.
Despite speculation (based on Horkins’s previous rulings and defence lawyer Marie Henein’s attacks on the credibility of the case’s three complainants) that Ghomeshi will be acquitted, the outcome isn’t a sure bet. Here are four possibilities.
1. Full acquittal. “You can knock me over with a feather if he’s convicted on anything,” says former British Columbia Crown Sandy Garossino. Indeed, a full acquittal is what most close observers of the trial — lawyers, the public, the media — expect. Proof of Ghomeshi’s guilt beyond a reasonable doubt is a very high bar to clear. “It’d be against the principles of criminal justice to convict on this evidence where [the complainants] blatantly lied,” says former Crown and criminal defence lawyer John Navarrete of Neuberger & Partners LLP. “That, at the end of the day, will weigh the heaviest on the judge’s mind.”
The correspondence between Lucy DeCoutere and Witness 3 and the post-incident conduct (the bikini photo Witness 1 emailed Ghomeshi, the hand job Witness 3 gave Ghomeshi weeks after the alleged assault but didn’t disclose until just before her testimony, and the letter and “I want to f— your brains out” email DeCoutere sent Ghomeshi) will factor greatly in the judge’s decision as to whether the witnesses are credible enough to believe.
The judge will also consider the explanations provided on the stand (Witness 1 said she sent the photo in search of an explanation, DeCoutere said she didn’t remember writing to Ghomeshi, Witness 3 said she was embarrassed). “It’s possible he believes them,” Navarrete says. “But the problem is the conduct itself is still bad,” he says, referring specifically to Witness 3’s sexual encounter with Ghomeshi.
With a full acquittal would likely come some words from the judge about the importance of women coming forward with sexual assault complaints. “I think [the judge] is really cognizant of how [this verdict is] being watched,” says Ummni Khan, associate professor of legal studies at Carleton University. One demonstration of this was Justice Horkins’s refusal to give media access to the photo of Witness 1 in a red string bikini, voicing concern about a “chilling effect” that would deter women from reporting sexual violence.
2. A lowered charge. The romantic context of Ghomeshi’s interactions with each of the witnesses prior to the alleged assaults is what led to charges of sexual assault. In the case involving Witness 1, who says Ghomeshi yanked her hair and delivered blows to her face, the judge could reduce the charge of sexual assault to assault. “Depending on the degree of severity of the offence or mens rea intention of the accused, it is open to the judge or the jury to find a lower level,” Garossino says. “They can’t go up above what’s charged, but they can go down.” However, this is not likely to happen here.
3. Partial conviction. It’s possible Justice Horkins is convinced Ghomeshi assaulted at least one of the witnesses and could deliver a guilty verdict on one count of sexual assault. (It’s worth noting that Henein did not challenge Witness 1 on whether or not the assaults occurred.) All of the other evidence (post-incident conduct and so on) will still factor in, lowering the likelihood of a partial conviction, Navarrete says.
4. Full conviction. This is the least likely scenario. Justice Horkins would have had to believe all or a good portion of the witness testimonies and be able to rule beyond a reasonable doubt that Ghomeshi committed these offences. “If he’s convicted, it’ll be on the basis of this principle of law — a judge can believe all, some or none of any witnesses’ evidence,” Navarrete says. The judge will also be wary of what comes next if he issues a full conviction. “If he convicts, there will absolutely be an appeal,” Garossino says, and Ghomeshi may even have a malicious prosecution civil case if he and his lawyers can prove the charges should not have been laid in the first place.
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