Jian Ghomeshi and his lawyer Marie Henein arrive at court in Toronto. (Photo: The Canadian Press)Such investigations are particularly challenging when the alleged offences took place years ago, experts said, adding prosecutors can do little more than repeat questions that the witness has already been asked.
A copy of a photograph of Lucy DeCoutere released by the court during the trial of Jian Ghomeshi on Feb. 5, 2016. (Courtesy: The Canadian Press)She backtracked after Henein produced two emails sent a year after the fact, one of them containing a photo of the witness posing in a bikini. But she testified she did so in order to bait Ghomeshi into communicating with her and explaining the alleged assault. When "Trailer Park Boys" actress Lucy DeCoutere took the stand, Henein confronted her with a fawning, explicit, hand-written note sent to Ghomeshi the day after he allegedly choked and slapped her. Defence counsel has full access to such archives, but former prosecutor Mike Huot said Crown lawyers could not seek out such material unless they were explicitly told it existed. Search warrants are necessary to review any of the defendant's documents, and no warrant will be issued unless there's reason to believe that the search will turn up relevant evidence, he said. "If I was doing this, typically what I would say to the complainant . . . is: 'Make sure that you've given everything to the police that you have that exists between you and the accused,'" he said. "A lot of complainants don't necessarily keep all that. So then the question becomes: What steps did the police take to try and get hold of that material through third parties? They may not have done that." But Huot also said the abundance of evidence available to Henein could play into prosecution strategy down the line, saying any closing submissions he would make would raise the question of why Ghomeshi felt the need to preserve electronic and hand-written correspondence over more than a decade.
Other approaches commonly associated with television legal dramas, however, would not apply in this case. Huot said expert witnesses to testify on post-trauma behaviour would not likely have been deemed necessary for a trial heard by judge alone, since he would presumably be familiar with the issues at hand and any relevant precedent. Ridgedale said prosecutors would be barred from presenting witnesses who could theoretically establish a pattern of behaviour, since such evidence could be seen as prejudicial and doesn't pertain to the exact offences on trial. Former prosecutor and present-day defence lawyer Calvin Barry said such a setup can make life easier for the defence, adding a Crown attorney's job is particularly difficult in a historical case such as this one. "It's problematic for both sides, but it usually nears to the benefit of the accused and the defence team because they don't have to disprove anything," he said. "The burden always rests at the foot of the Crown attorney."
"The burden always rests at the foot of the Crown attorney."
Ridgedale said prosecutors do have a duty to stress the importance of good witness conduct, such as not consuming media on the trial or having inappropriate conversations about the allegations. Huot, meantime, said Crown attorneys familiar with the limits of the system say patterns in witness testimony may outweigh any seeming discrepancies that emerge under cross-examination. He said Ghomeshi's conduct as described by the witnesses is striking, adding he suspects the consistency in their accounts may be the linchpin of the Crown's case against him. "I think if you're the Crown, that's the ace in your hole. How probable is it that all three of these women are lying? That's the big hurdle the defence has to overcome."
How probable is it that all three of these women are lying? That's the big hurdle the defence has to overcome."
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