We Got Experts To Answer 12 Key Questions About The Ghomeshi Trial

Why was there so much "surprise" evidence introduced by the defence?

The trial of Jian Ghomeshi is over, and Judge William Horkins will take until March 24 to reach verdicts for each of the five sexual assault charges faced by the disgraced former CBC host.

BuzzFeed Canada asked three experts to clear up some of the big questions left for the public as we await a verdict.

1. The Crown has been criticized for not knowing about “surprise” evidence showing each witness had contact with Ghomeshi after the alleged assaults. Whose job was it to get the witnesses to disclose everything about their interactions with Ghomeshi?

Alexandra Newbold / THE CANADIAN PRESS

The police play the role of the investigator, and the Crown works with what they are provided, according to Karen Bellehumeur, a lawyer at Jellinek Law who specializes in sexual abuse cases. A former Crown Prosecutor, she spent over two decades prosecuting sexual offenders.

"It wasn't an obligation on the Crown to investigate and find evidence that they didn't know about," she said. "The police are the investigators — they rely on the witnesses to lead them to evidence that might assist them, that might be relevant to the investigation. If they had known about an email, they likely would have asked to see it and done a further investigation."

Ultimately, she said, "It comes down to the witnesses. They have to provide the information so that it can be investigated."

2. So then whose job was it to prepare the Crown’s witnesses for their testimony on the stand?

Court Exhibit

Bellehumeur says witness prep is the Crown's job. Their witness, their responsibility. But that doesn't mean they go through a rehearsal of everything the witness will say.

"The Crown doesn't want to put any words in the mouths of the witnesses so it's quite a broad kind of preparation," she said.

3. Do most witnesses have their own lawyer, as the three claimants in this trial did?

"Lawyers for witnesses is a pretty rare occurrence," Bellehumeur said.

So this was indeed unusual. And it also means there isn't a clear and established protocol for how the Crown and a witnesses' lawyer will interact, she said.

"It would just be a situation where the Crown would have as much contact as he or she felt was appropriate."

4. Why would a witness want a lawyer in a case like this?

Graeme Roy / THE CANADIAN PRESS

One reason is that a sexual assault complainant goes through a more difficult ordeal than someone who witnessed a crime or who had their house broken into. A lawyer could presumably help protect them.

Another reason, according to Bellhumeur, is to help the witness navigate the proceedings and their role in them.

5. Why did the defence have emails and Decoutere's letter and the Crown didn't?

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Jesse Brown of Canadaland wrote that these materials came from Ghomeshi himself. Bellehumeur agrees that's the likely reason.

"He was, after all, the recipient of those emails and the letter," she said. "The Crown didn't have it because they didn't know about it and that's not through any fault of the Crown's."

6. Is it common in sexual assault cases for the defence to present so much evidence that the Crown doesn’t seem to know about?

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The defence is always on the hunt for information to make its argument. Bellehumeur said "it's not unusual in a case for the defence to bring forward evidence in a case that the Crown hasn't seen before."

However, this case is notable for the volume and importance of what was revealed. That may partly be due to how much time passed since the alleged incidents and the trial.

"There is more of a risk for more evidence the older the case," she said. "As more time goes by, there's more opportunity for things to happen, and as well for memories to fade and so the complainant may not provide all the information that might be out there which the defence can bring forward."

7. Why do disclosure rules require the Crown to share all the information it has with the defence, but not the other way around?

Marc Lostracco / Via en.wikipedia.org

"The reason for that is that it's the accused whose liberty is in jeopardy," Bellehumeur said. "The accused has a right to what's called full answer and defence — that is the right to know a case before them and to put forward a defence."

That right is laid out in the Canadian Charter of Rights and Freedoms. Witnesses and those making complaints do not have their liberty at risk (at least in terms of going to jail).

"There's therefore no reverse obligation for defence to provide disclosure to the Crown — except in specific circumstances, such as if defence is going to call expert evidence, then there are rules that require them to disclose that to the Crown," she said.

8. The verdict hinges in large part on whether the judge believes the witnesses were telling the truth. How does a judge evaluate witness credibility?

Alexandra Newbould / THE CANADIAN PRESS

There is no one set of rules for how judges do this. They weigh several factors, according to Carissima Mathen, a law professor at the University of Ottawa.

"Very important, of course, is how the witness conducts herself on the stand, including demeanor," she said.

A judge also listens closely to the witness's story, noting whether it has changed over time, and how they then respond to cross-examination.

"One point that judges seem to mention is how a witness deals with inconsistencies or gaps, or other facts that may not present the witness in the best light," Mathen said. "Does the witness admit to them, or try to challenge or explain them away?"

She said that judges know people aren't perfect, so they "tend to be wary of witnesses who appear too 'coached.'"

9. What does the law say about after-the-fact behaviour of claimants in sexual assault cases?

Frank Gunn / THE CANADIAN PRESS

There is the law, and then there is the human context in which it's applied. That context means "the criminal justice system has a very bad legacy when it comes to the behaviour of sexual assault complainants," Mathen said.

"The doctrine that a complainant should be expected to raise a 'hue and cry' immediately after being raped — otherwise the complainant is less believable — is one example," she said.

The "hue and cry" presumption no longer exists. There is an understanding now that the behaviour of victims of sexual assault will vary. The Criminal Code also says that a complainant's sexual activity can't be used to imply that an alleged assault was consensual.

"In determining whether the complainant consented to sexual touching, we must look to her state of mind at the time it occurred," said Michael Plaxton, an associate professor of law at the University of Saskatchewan, and the author of Implied Consent & Sexual Assault. "Her attitude later is quite beside the point."

However, a complainant's behaviour will be raised and potentially considered by the judge if "the evidence suggests that a complainant has not been forthright about her contact with the accused after the fact, whether that contact is sexual or not," Mathen said.

10. What does research say about how women behave after a sexual assault?

Rebecca Hendin / BuzzFeed Canada

There is no one way that the law, or courts, expect a victim to behave. And in fact there is a level of appreciation, or at least understanding, that "the response can often be counter-intuitive to what a layperson expects," according to Mathen.

She said that "when you are violated by someone with whom there's a pre-existing relationship, there seems to be a greater tendency to rationalize the assault in a way that puts your aggressor in a more benign light, in part because recognizing that you are have been violated by someone you trusted is very hard to process."

11. What is the law regarding consent in Canada as it applies to this case?

Wikipedia / Via en.wikipedia.org

"A very important aspect of the law regarding consent is that consent is discrete to every instance of sexual contact," Mathen said.

A key case regarding consent is R v. Ewanchuk. Plaxton said that Supreme Court of Canada decision established that "the silence, passivity, or ambiguous conduct of the complainant cannot form the basis of an 'honest' belief in consent."

So consent is separate to every bit of contact, and it must also be explicit.

"All of the complainants describe incidents in which Ghomeshi punched, slapped, or choked them without any advance warning," Plaxton said. "Assuming for the sake of argument that the incidents occurred as the complainants described them, there seems to have been no basis for Ghomeshi to have inferred consent."

12. Why hasn't consent been raised in this case?

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Rather than argue that Ghomeshi received consent to pull hair, slap, and choke the three complainants, the defence instead argued the incidents never happened.

"That being the case," Plaxton said, "consent (or honest belief therein) is simply not in issue."