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Information No.

998

15

70010996

ONTARIO COURT OF JUSTICE

HER MAJESTY THE QUEEN


V.

10

JIAN GHONESHI

PROCEEDINGS

AT

TRIAL

15
BEFORE THE HONOURABLE JUSTICE W.B. HORKINS
on February 11, 2016 at TORONTO, Ontario

20

25

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION


PURSUANT TO SECTIONS 486.4 AND 517 OF THE CRIMINAL CODE BY
ORDER OF JUSTICE W.B. HORKINS, ONTARIO COURT OF JUSTICE
DATED FEBRUARY 1, 2016.
ANY PUBLICATION CONTRARY TO
SECTION 517 IS A CRIMINAL OFFENCE.

APPEARANCES:
30

N.

Callaghan and C.

N.

Henein, 0. Robitaille,
and S. Walker

Langdori

Counsel for the Crown


Counsel for Jian Ghomeshi

(i)
Table of Contents

ONTARIO COURT OF JUSTICE

TABLE

OF

CONTENTS

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION


PURSUANT TO SECTIONS 486.4 AND 517 OF THE CRIMINAL CODE BY
ORDER OF JUSTICE W.B. HORKINS, ONTARIO COURT OF JUSTICE
DATED FEBRUARY 1, 2016.
ANY PUBLICATION CONTRARY TO
SECTION 517 IS A CRIMINAL OFFENCE.

10

15

SUBMISSIONS OF MR.

CALLAGHAN

SUBMISSIONS OF MS.

ROBITAILLE

PAGE 34

SUBMISSIONS OF MS.

HENEIN

PAGE

SUBMISSIONS IN REPLY OF MR.

PAGE 2

CALLAGHAN

64

PAGE 83

20

Transcript Ordered:

February 11,

2016

Transcript Completed:

February 17,

2016

Ordering Party Notified:

February 17,

2016

25

LEGEND

[sic]
(ph)

Indicates preceding word has been reproduced verbatim and is not a transcription error.
Indicates preceding word has been spelled phonetically.

1.

R. v. Jian Ghomeshi
Proceedings at Trial

THURSDAY,

FEBRUARY 11,
MR.

2016

CALLAGHAN:

submissions,
5

Your Honour,

before I

commence

I think my friend had some

house.
MS.

HENEIN:

MR.

CALLAGHAN:

Right.
.

keeping matters to deal

with.
MS.
10

HENEIN:

Thank you.

clips that were played to one of the witnesses


we

we just neglected to file.

filed.

Theyve been

Theres a copy for Your Honour.

Exhibits 47,

48,

been marked.
15

There were just three

and 49 is

They are

police statement and,

Its

is what they have

just excerpts of the


as we were preparing,

we

noticed that I had neglected to.


THE COURT:
MS.

HENEIN:

THE COURT:
20

MS.

HENEIN:

Okay.
.

have them marked.

Thanks.
My friends in agreement with

that.
THE COURT:

25

Thanks.

MR.

CALLAGHAN:

MS.

HENEIN:

I am,

Your Honour.

And the only other thing is,

before my friend starts,


book to you.

Ive handed up a case

The reason is I think there may

be some cases my friend refers to.

So,

just

for my friends...
THE COURT:
30

MS.

HENEIN:

Appreciate it.
..

.assistance and yours,

there for you.


THE COURT:

Thank you.

Publication Ban

theyre

2.
Proceedings at Trial

CALLAGHAN:

MR.

Your Honour,

with my submissions,

before I commence

there is an outstanding

application that was bought

brought by the

Crown or a notice of application.


5

indicate the Crown,

obviously,

case as we move forward,

I can

assesses its

looking at the

evidence in conjunction with the appropriate


jurisprudence.

And I can indicate the Crown

wont be proceeding with the application that


10

was brought at the outset.

So,

Your Honour

asked me how you rely on each of the


individuals
THE COURT:
that.

evidence.
Yeah.

Okay.

I was gonna

ask you about

Thank you.

15
SUBMISSIONS OF MR.
MR.

CALLAGHAN
CALLAGHAN:

Your Honour,

society is

committed to protecting the personal integrity,


both physical and psychological,
20

individual.

of every

Having control over who touches

ones body and how lies at the core of human


dignity and autonomy.

The inclusion of assault

and sexual assault in the Code expresses


societys determination to protect the security
25

of the person from any non-consensual contact


or threats of force.

The common law has

recognized for centuries that the individuals


right to physical integrity is a fundamental
fundamental principle.
30

And,

Your Honour,

thats what this case is all about.


fact,

To similar

the observation of the Supreme Court of

Canada in R.

v.

Ogg-Moss,

Publication Ban

where it said one of

3.
Submissions of Mr.

Callaghan

the key rights in our society is the


individuals right to be free from uncortested
invasions

sorry,

unconsented invasions on his

or her physical security or dignity,


5

and it is

a central purpose of the criminal law to


protect members of society from such invasions.
So,

at the outset,

Your Honour,

Im going

to outline some of the sexual assault case law


thats applicable.
10

Youre an experienced trial

judge.

I know that youre familiar with these

cases.

But I do think its worth stating some

of the principles that really underpin this


area of the law.

The Supreme Court of Canada

outlined the test for sexual assault in R.


15

Chase.

v.

I think thats the really the main

case that

that outlines the test.

A sexual assault is an assault within any one


of the definitions of the concept in
Section 244 sub
20

(1)

of the Criminal Code,

which

is committed in circumstances of a sexual


nature such that the sexual integrity of the
victim is violated.

The test to be applied in

determining whether the impugned conduct has


the requisite sexual nature is an objective
25

one.

Viewed in the light of all the

circumstances,

is the sexual or carnal context

of the assault visible to a reasonable


observer.

The part of the body touched,

nature of the contact,


30

it occurred,
the act,

the

the situation in which

the words,

gestures accompanying

and other circumstances surrounding

the conduct,

including threats which may or may

Publication Ban

4.
Submissions of Mr.

Callaghan

not be accompanied by force,

would be

relevant.
So,

we turn,

then,

to the constituent elements

of the actus reus of sexual assault.


5

just pause for a moment.

Might

In looking at the

constituent elements of the actus reus of


sexual assault,

Ewanchuk,

in that decision from

the Supreme Court of Canada stated


The actus reus of sexual assault is
10

established by the proof of three elements:


(i)

touching,

contact,

and

(ii)
(iii)

the sexual nature of the


the absence of consent.

first two of these elements are objective.

The
It

is sufficient for the Crown to prove that the


15

accuseds actions were voluntary.


The sexual nature of the assault is determined
obj ectively.
The Crown need not prove that the accused had
any mens rea with respect to the sexual nature

20

of his
or her behaviour.

As to the mens rea,

Ewanchuk

goes on to state
Sexual assault is a crime of general intent.
Therefore,
25

the Crown need only prove the

accused intended to touch the complainant in


order to satisfy the basic mens rea.
And,

in speaking of mens rea in sexual assault,

Justice LHeureux-Dub,

in the decision Park,

stated
30

The mens rea of sexual assault is not only


satisfied when it is shown that the accused
knew that the complainant was essentially
Publication Ban

5.
Submissions of Mr. Callaghan
saying

no, but is also satisfied when it is

shown the accused knew that the complainant was

essentially not saying

yes.

In Chase,

the Supreme Court stated

the course

Implicit in this view of sexual assault is the


notion that the offence is one requiring a
general intent only.

...

To put to the Crown

the burden of proving a specific intent would


go a long way toward defeating the obvious
10

purpose of the enactment.

Moreover,

there are

strong reasons in social policy which support


this view.

To import an added element of

specific intent in such offences, would be to


hamper unreasonably the enforcement process.
15

So,

in the Crowns submission,

the allegations

in this case are clearly sexual assaults.

The

evidence of each of the complainants describe


the intentional application of force without
consent in a context that a reasonably
20

objective observer would conclude was sexual in


nature.

Ms.

described her

interactions with Mr.

Ghomeshi as flirty.

is in this context of sexual kissing


kissing that Mr.
25

hair in his car.

It

sensual

Ghomeshi violently pulls her


Similarly,

the hair pulling

and punches to her head arise in the context of


kissing and intimacy.

Ms.

DeCoutere describes

being choked and slapped in the face while


Mr.
30

Ghomeshis

while at Mr.

Ghomeshis

residence in the midst of kissing.

The

evidence clearly demonstrates a sexual context


of the interactions.

Ms.

Publication Ban

described

6.
Submissions of Mr. Callaghan
that,

while kissing Mr.

bench,

he squeezed her neck and covered her

mouth,

causing her to have difficulty

breathing.
5

Ghomeshi on a park

The surrounding circumstances of

their romantic interactions highlight the


sexual content.
Honour,

What Im gonna

do now,

Your

I propose to go through a brief

overview summary of the allegations of each of


the complainant in relation to the sexual
10

assaults,

starting with s.

Ms.

met Mr.

Christmas party.
context.
by Mr.
15

Ghomeshi at the CBC

The context was a flirting

She was invited to a taping of Play

Ghomeshi a couple of days later.

she attended the play episode,

Mr.

Ghomeshi

greeted her and showed her where to sit.


the show was over,
around the bar,
Mr.
20

After

they ended up standing

talking to some of

Ghomeshis friends.

street for a drink.

Mr.

They went across the


Ghomeshi was being

sweet and humble and charming.


the pub, Mr.

When

When they left

Ghomeshi offered to drive her to

her car, which was parked in a nearby parking


lot.
25

Mr.

When they got to the car,

Ghomeshi drove over to where Ms.

was parked,
minutes.

they chatted in the car for a few

They were sitting facing each other

while seated in the front seats.


asked Ms.
30

and

Mr.

Ghomeshi

to undo a couple of buttons

on her shirt.

She refused.

flirting during this time.


consensually kissing,

They were both


They started

and Mr.

Publication Ban

Ghomeshi then

7.
Submissions of Mr. Callaghan
reached around behind her head and grabbed her
hair really,

really hard.

Ms.

head back and held if for 2 to 3

seconds.
5

He pulled

Mr.

Ghomeshis hand was around her

neck during the kissing.

He didnt say

anything before he pulled Ms.


When he stopped,

Mr.

hair.

Ghomeshi said something

along the lines of Do you like it like that


or Do you like this.
10

Ms.

described

that it felt like a rage that wasnt there a


second before he did it.

After he stopped

pulling her hair, Ms.


they were

remembered that

that they were talking and

Mr. Ghomeshi was back to being the sweet,


15

charming guy from before the sudden switch.


Ms.

indicated that she was confused

after the incident in the car.

She was

thinking that she would have to tell him this


is something she cant handle,
20

something that

she would have to sort out or they would have


to sort out together.

Mr.

Ghomeshi kissed her

again goodbye and they drove off.

She kissed

him because he had switched back to the nice


guy,
25

and she questioned whether he actually

meant to hurt her in the previous interaction.


Ms.

went to another taping.

him again,

because he was nice,

and he had

switched back to that nice person.


was uneventful.
30

Ms.

again a third time.

She saw

This taping

saw Mr. Ghomeshi


She went the first week of

January to another taping of the show Play.


This time,

her friend,

Publication Ban

went

8.
Submissions of Mr. Callaghan
with her.

Entered as an exhibit was a

video clip of Ms.

We heard from

she drove to Ms.

home,

and they took the subway down to get down to


the CBC building.

Theyd heard there was going

to be a snow storm.
friendly,

Mr.

Ghomeshi was warm and

and they interacted with Mr.

throughout the show.


10

was a

and Ms.

from the taping of that episode.


Ms.

In fact,

Ghomeshi

you heard that

they were briefly interviewed in the course of


that program.

At the end of the show,

they

decided to go to the pub across the street,

15

the weather was very bad.

After about an hour,

Mr. Ghomeshi asked if Ms.

and

Ms.

wanted to go back to his place.

Ms.

had small children

dropped her off at the subway,


drove with Mr.

they

So,

and Ms.

Ghomeshi to his home.

Mr. Ghomeshi put music on at the home,


20

Ms.
talking,

wanted a drink.
flirting,

Ms.

warning,

They were

got up from the couch.

at this point,

he was behind her,

hair extremely hard.

three times.

She ended up on her knees

and he hit her in the head

It felt like a closed fist,

hit her very hard.


started crying,
better go now,

Without

and he pulled her

she wasnt in a position to see,


30

She was

They were standing up

kissing as well.

from being pulled,

asked if

kissing on the couch.

looking around his home.

25

as

though.

She was stunned.

and Mr.

He

She

Ghomeshi told her shed

or You should go.

Publication Ban

and

Ill call

9.
Submissions of Mr. Callaghan
you a cab.

There was a change in his

demeanour.

He went from being a really nice

guy to this rage and

and dark.

threw her out like trash.


5

scared and in tears,


what had happened.

He three

Ms.

was

traumatized what had

Im now gonna

evidence of Ms.
10

Mr.

DeCoutere.

conversation was light.


Mr.

by

Ghomeshi.

turn to the
Ms.

DeCoutere met

Ghomeshi in Banfi, Alberta in 2003.

flirtatious.

She never consented to the

violence inflicted upon her by Mr.


Your Honour,

he

Their

It was very

Ghomeshi gave Ms.

DeCoutere

his business card and he invited her to contact


him afterwards.
15

Halifax,

When Ms.

DeCoutere returned to

she contacted Mr.

Ghorneshi,

and they

started exchanging flirtatious emails on a


almost daily basis.

20

After communicating with

Mr.

Ghomeshi for a couple of weeks to a month,

Ms.

DeCoutere went to Toronto.

friends and to see Mr.

Ghomeshi,

She went to see


see if he was

the type of person she might want to pursue a


relationship with.

She was thinking of this as

a potential romantic encounter.


she saw Mr.
25

Ghomeshi,

the Danforth.

they had dinner at Pan on

I think we heard evidence that

that was the 4 of July,

2003.

After dinner,

they walked back to Mr.

Ghomeshis house.

they were walking back,

he put his arm around

her shoulder,
30

The first time

As

and he commented that she was the

right height for him.

While on the way back to

the house,

he tried to kiss her,

declined.

When they got to the house,


Publication Ban

but she
they

10.
Submissions of Mr.
were outside the
house,

once they got into the

he went on a tour.

his closet,

They were outside of

she described,

kissing with her.


5

CaJ.laghan

and he started

That was consensual kissing.

She was then pushed up against the wall.


was enough pressure applied
against the wall,

10

mark.

was pushed up

his hand around her neck,

he slapped her twice,


third time.

There

paused,

and

and slapped her a

It was hard but didnt leave a

There was no build-up.

He used enough

pressure that she couldnt breathe.


consented to the kissing,

She

but she was not able

to consent to the choking or hitting because


she just received it.
15

She was never asked if

she wanted to engage in this conduct.


the assault,
Ms.

she stayed a bit longer.

DeCoutere had no idea how to react or to

process what had happened.


didnt want to anger him.
20

seem rude.

Ms.

DeCoutere

She didnt want to

She just didnt feel like leaving

was the right choice.

So,

she stayed because

she wanted to placate the situation,


normalize it.
pleaser,
25

and this was very consistent,

or

Ghomeshis

Ill now turn to the evidence of


.

Ms.

for many years,


30

and she

disappointing,

seeming not cosmopolitan in Mr.


eyes.

to

She indicated shes a people

was concerned about angering,

Ms.

After

knew of Mr.
as her

the music industry.

Ghomeshi

was involved in

She didnt really know him

other than to say Hello, but she had known


him from the time when he was in the band Moxy
Publication Ban

11.
Submissions of Mr. Callaghan
Fruvos.

In 2003, Ms.

moved to Toronto.

She was involved as a dancer in the


Festival held in
that,
5

the

Park.

from the poster,

th
15

to

th
20

she met Mr.

And we know

that that was from July

of 2003.

One of the evenings,

Ghomeshi after the show.

They had

been introduced previously, but they werent


friends.

Mr.

Ms.

was speaking with

four or five young girls who had seen the show


10

and were sort of taken with them.


came up from behind her,
on her shoulders.

Mr.

and rested his elbows

She didnt recall much about

the remainder of that interaction.


time Ms.
15

dinner.

Ghomeshi

and Mr.

The next

Ghomeshi met,

they had

They went somewhere on the Danforth,

which was just around the corner from


Park.

Following the dinner, Ms.

and

Mr. Ghomeshi saw each other again.


they were in
20

park.

This time,

Ms.

had

completed her performance in the dance.


saw Mr. Ghomeshi after the show,

She

and they made

their way to a baseball diamond, where the


evidence Ms.
making out.
25

gave was that they were


At some point during the kissing,

he started to kiss her neck,


of a sudden,

and she felt,

his hands on her shoulders and his

teeth on her neck,

and then his hands went

around her neck and he was squeezing.


realized this wasnt right.
30

out of it.

all

She

She tried to get

And then his hand was on her mouth,

sort of smothering her.


ability to breathe.

This impacted on her

She then remembers getting

Publication Ban

12.
Submissions, of Mr.

up,

getting in a cab,

Callaghan

and leaving.

consent to this activity.

She did not

You heard that she

continued to date or see Mr.

Chomeshi for up to

another couple weeks following the sexual


5

assault,

and she did engage in one romantic

encounter with him postassault.

If Your

Honour accepts that the offences constitute


sexual assaults within the meaning of the law,
you have to then determine whether the Crown
10

has proven the offences beyond a reasonable


doubt.

For Your Honour to be satisfied beyond

a reasonable doubt,

you must accept the

accounts provided by each complainant on their


own.
15

In doing so,

you must assess their

credibility and their reliability.

Delayed

disclosure or incremental disclosure and


stereotypical assumptions of how one should
react after a sexual assault should not form
part of that assessment.
20

Because of the state

of the law as it relates to those three points,


I want to be

I want to be clear.

is not required.

An expert

I will take the opportunity

to outline the law in relation to these issues.


In relation to delayed disclosure,
25

Honour is aware,

as Your

these allegations are dated.

They stem from 2002 and 2003.

The complainants

did not report their allegations to the police


until 2014.

The Supreme Court of Canada was

clear in the decision of R.


30

v.

D.D.

that it is

established law in Canada that the court does


not require expert evidence to explain why a
complainant might come forward years later or
Publication Ban

13.
Submissions of Mr.

Callaghan

that there are many reasons for delayed


disclosure.
The signficance of the complainants failure
to make a timely complaint must not be the
5

subject of any presumptive adverse inference


based upon rejected stereotypical assumptions
of how persons,
and,

in that case,

particulary children,

react to acts of sexual abuse.


10

In R.

v.

L.K.,

it was a decision of the

Superior Court of Justice of Justice Trotter.


He addressed the issue of incremental
disclosure and stated
Given the passage of time and the experience
15

of courts in interpreting and applying D.D.,


the incremental disclosure might well be viewed
as merely a type of delayed disclosure.

It

would appear that the same body of knowledge


and understanding about the behaviour of
20

victims of trauma would apply to both.

It is

my view that incremental disclosure may be


addressed in the same manner as delayed
disclosure with the proper instruction to the
jury
25

The complainants in this case all provided Your


Honour with reasonable explanations for not
coming forward to the police contemporaneous to
the allegations.

Ms.

that she wouldnt be believed.


30

was concerned
Ms.

didnt think she could go to the police with


her allegations.
serious enough.

She didnt think they were


It wasnt until former Toronto

Publication Ban

14.
Submissions of Mr.

Callaghan

Chief of Police Bill Blair held a press


conference,

calling for people with similar

experiences to come forward,

that she felt she

could come forward and be heard.


5

Ms.

was unsure of the reporting process.

DeCoutere
She

didnt realize that the incident qualified.


She thought that,
be made out,

in order for the offence to

you had to be broken and raped.

It wasnt until she became aware of other


10

allegations that she went to the police.


Ms.

indicated that she went to the

police when she heard about other allegations.


She testified that she recognized a pattern.
There was a familiarity in some of the things
15

that she was hearing that were familiar to what


she had gone through,

and she realized it

wasnt an isolated incident.

Id like to

address the issue of different individuals


having different reactions to sexual assaults.
20

I would suggest,

Your Honour,

the law is also

clear that everyone reacts differently to


sexual assaults and that postassault behaviour
should not necessarily be used in the
assessment of a complainants credibility.
25

R.

v.

G. (A.),

In

the Supreme Court of Canada

stated
Our court has rejected the notion that
complainants in sexual assault cases have a
higher tendency than other complainants to
30

fabricate stories based on

ulterior motives

and are therefore less worthy of belief.


Neither the law nor judicial experience nor
Publication Ban

15.
Submissions of Mr.

Callaghan

social science research supports this


generalization.
In R.

v.

Williams,

Court of Ontario,
5

a decision of the Superior


Justice Abrams stated

I remind myself that the timing of disclosure


of sexual assault signifies nothing.

Rather,

the timing of disclosure dependents upon the


circumstances of the particular victim.

There

is no inviolable rule on how people who are


10

victims of trauma like sexual assault will


behave.

Any rules,

once believed to be sound,

were based on what we now understand to be


stereotypes and myths.

In assessing the

credibility of this complainant,


15

the timing of

the complaint is just one circumstance in the


factual mosaic of the case.

A delay in

disclosure or the fact that a complainant


remains in an abusive relationship standing
alone will never give rise to an adverse
20

inference against the credibility of the


complainant.
In R.

v.

the Supreme Court of Canada

W. (R.),

stated
Finally,
25

the Court of Appeal relied on the

fact that neither of the older children was


aware or concerned that anything untoward
occurred which is really the best test of the
quality of the acts.
reliance on the

30

This reference reveals

on the stereotypical but

suspect view that victims of sexual aggression


are likely to report the acts,

a stereotype

which found expression in the now discounted


Publication Ban

16.
Submissions of Mr.

Callaghan

doctrine of recent complaint.

In fact,

the

literature suggests the converse may be true;


victims of abuse often in fact do not disclose
it,
5

and if they do,

it may not be until a

substantial length of time has passed.


The evidence of all of the complainants clearly
demonstrated that each of the complainants
reacted to the sexual assault in their own
unique way, based on their individual

10

personalities and their life experiences.


Ms.

was traumatized after the sexual

assault in Mr.
tears.

15

Ghomeshis home.

She was in

She couldnt understand why

Mr. Ghomeshi assaulted her.

It was without

warning and out of context.

She left his house

wondering what she had done to elicit such a


violent reaction from him,
thought had been so kind,
Time passes,
20

this man who she


charming,

and Ms.

and nice.

was still left

wondering about the interaction she had with


Mr.

Ghomeshi.

and funny,

He was so charming and wonderful

but there was this shocking and

unexpected switch in his behaviour that left


her wondering what had happened those two
25

fateful nights in 2002 and 2003.

So,

she wrote

him and tried unsuccessfully to elicit an


explanation.

And then she sent him a picture

using the only commodity that she thought she


had to attract an explanation
30

her body.

This

was all in an effort to understand the


incidents of violence that she had experienced
at the hands of Mr.

Ghomeshi.

Publication Ban

Turning to

17.
Submissions of Mr. Callaghan
Ms.

DeCoutere,

her reaction to being choked and

assaulted by Mr.

Ghomeshi was very different

from that of Ms.

She testified in

s.

detail how she went to great lengths to


5

normalize the situation.

She candidly admitted

that her behaviour towards Mr.

Ghomeshi in the

wake of a sexual assault may appear at odds


with what one might expect but that,
viewed in this context,
10

bizarre.

But again,

when

it may even seem

the characterization of

the evidence as unexpected or bizarre alone is


not enough for Your Honour to reject the
evidence of Ms.

DeCoutere.

Ms.

DeCoutere

testified that the choking and assault came out


15

of nowhere.

She didnt understand what

happened to her.

She couldnt process it.

couldnt frame it.


funny,
Ms.
20

charming,

She understood him as a

engaging person.

DeCoutere was keenly aware of the fact that

she would see Mr.

Ghomeshi again.

They worked

in the same Canadian cultural milieu.


in the same circles.

Ms.

that she would,

at times,

They ran

DeCoutere described

herself as a people pleaser.

25

She

She testified

go overboard to make

sure there was no negativity or weirdness with


people.

In Ms.

DeCouteres mind,

she had a

clear need to normalize the situation with


Mr.

Ghomeshi.

That is consistent with her

personality and her manner of dealing with


30

things.

This is something inherently

there

is something inherently internally consistent


with this explanation and what we know of
Publication Ban

18.
Submissions of Mr. Cailaghan
Ms.

DeCoutere.

Lastly is Ms.

Ms.

She testified that she wanted to pretend this


didnt happen.

She was also very concerned

about the impact reporting this would have on


5

her

a Canadian musician.

She told

Your Honour that she didnt want to be seen as


the hysterical

She also knew she would

have to deal with Mr.

Ghorneshi in the future.

They knew many of the same people in the


10

Canadian music industry.

Ms.

was

involved in the promotion, management of


musicians,

and Mr.

Ghomeshi was an influential

person in the music industry.

Ms.

had a

clear interest in maintaining a working


15

relationship with him.


issue of corroboration.
legal principle,
Criminal Code,

Gonna

turn now to the

It is well established

codified in Section 274 of the

that sexual assault victims need

not provide independent corroborating evidence.


20

Such evidence may not be available,

especially

where the alleged incidents took place decades


earlier.

Also,

the incidents of sexual assault

normally occur in private.

To the extent

and

Im quoting now from the Supreme Court of


25

Canada,
To the extent that the credibility assessment
demands a search for confirmatory evidence for
the testimony of a complaint,

such evidence

need not directly implicate the accused or


30

confirm the complainants evidence in every


respect.

The evidence should,

however, be

capable of restoring the triers faith in the


Publication Ban

19.
Submissions of Mr. Callaghan
complainants account.
So,

Your Honour

having dealt with the issues

of why theres no need to call an expert in


this case,
5

the role of post conduct

assault

conduct and rape myths and corroboration and


the respective roles they can play in Your
Honours assessment,

I want to turn to what I

would suggest are really the key and real


issues for Your Honour to determine in this
10

case:

the credibility and the reliability of

the witnesses.

Turning first to reliability,

relative to a witnesss testimony refers to


factors other than honesty that can influence
the accuracy of a witnesss testimony.
15

These

factors can include the ability of the witness


to make the relevant observation or to recall
accurately what was observed and communicate
those observations with accuracy.
reliability,

20

In assessing

particularly as the allegations

relate to dated matters,

Your

consider,

suggest four criteria:

1.

and Im gonna

Your Honour can

the need to look for confirmatory evidence

where it should have been available,


particularly given inconsistencies and
25

contradictions if they exist in a complainants


testimony,

2.

the concern that an abundance of

detail in cases involving distant events may


not necessarily imply an accurate memory,
3.
30

The absence of evidence available to support

the complainants testimony in key areas,


4.

and

the simple concern that the vicissitudes and

influences of life over a long period can have


Publication Ban

20.
Submissions of Mr.

Callaghan

an impact on such things as motive and the


reliability of witnesses

testimony.

at the area of credibility,


aware,
5

as Your Honour is

credibility is a different assessment

than reliability.
none,

Looking

Your Honour can accept all,

or some of a witnesss evidence.

Accordingly,

a trier of fact is entitled to

accept parts of a witnesss evidence and reject


other parts.
10

And,

similarly,

the trier can

afford different weight to different parts of


the evidence that the trier of fact has
accepted.

There are a number of different

tools for assessing credibility of witnesses.


Some of the questions or the strategy you might
15

employ,

Your Honour,

is to look first

there

is the ability to consider inconsistencies with


previous statements or testimony at trial with
independent evidence.

Second,

an assessment

can be made of the partiality of witnesses due


20

to kinship,
Third,

hostility,

or selfinterest.

the court can consider the capacity of

the witnesses to relate their


testimony;
remember,
25

their

that is their ability to observe,


communicate the details of their

testimony,

and,

fourth,

the court consider

can consider the contradictory evidence as well


as the overall sense of the evidence and,

when

common sense is applied to that testimony,


whether it suggests the evidence is impossible
30

or highly improbable.

So,

what I propose now

is to look at each of the witnesses,

looking at

the issue of reliability and credibility,


Publication Ban

21.
Submissions of Mr.

Cailaghan

starting first with Ms.

If one looks

at reliability and looking at the need for


confirmatory evidence where it should have been
available, particularly given any
5

inconsistencies and contradictions in the


complainants testimony,

looking at

confirmatory or unchallenged evidence,


that Ms.
event.
10

met Mr.

we know

Ghomeshi at the CBC

We know that she attended Play

episodes.

We know that, particularly the third

Play episode,

the night of one of the alleged

sexual assaults,

shes on video thats been

filed as an exhibit in these proceedings.

Its

clear she developed a relationship with


15

Mr.

Ghomeshi that spanned from December 2002 to

January 2003.

One point I want to focus on is

with respect to the

challenged Ms.
Mr.
20

the car.

Ms.

Henein

s recollection that

Ghomeshi drove a yellow Volkswagen Bug.

agreed statement of facts,


fact that Mr.

In

it was admitted as

Ghomeshi leased a yellow

Volkswagen Bug in July of 2003.

However,

theres no evidence before the court as to the


colour or make of the vehicle Mr. Ghomeshi
25

drove in December of 2002.


suggestion made to Ms.

And so,

the

should really

play no part in Your Honours assessment of


reliability.

Theres a factual vacuum.

Looking at the concern about the abundance of


30

detail in cases involving distant events which


may or may not necessarily imply an accurate
memory,

it was clear that there was not an


Publication Ban

22.
Submissions of Mr. Callaghan
abundance of detail that would make the
cOmplainants version suspicious or
questionable.

Ms.

admitted that her

memory was flawed and that there were certain


5

details that she was foggy on and unclear.

She

was also candid in saying that she tried to


forget about this incident and bury the memory.
We know memory is fallible,
accept that,
10

and we have to

in historic cases like this one,

therell be lapses in memory.

When looking at

the absence of evidence available to support


the complainants testimony in key areas,

there

was no absence of evidence available to support


the complainants testimony because of the
15

nature of the allegations.

We know that sexual

assault is a crime that takes place in private,


and the only evidence that can be available to
support the complainants evidence would be if
a third party was there.
20

And Im going to

suggest to you that analysis or that response


is really applicable to all of the
complainants.
allegation,

the

Given the nature of the type of

its

would

may be unusual to

find evidence of that nature present.


25

at the fourth factor,

Looking

the simple concern that

the vicissitudes and influences of life over a


long period can have an impact on such things
as motive and the reliability of the witnesss
testimony,
30

this is a concern that I think Your

Honour has to approach every witness with,


keeping in mind when broadly assessing the
reliability,

given the passage of time.

Publication Ban

And I

23.
Submissions of Mr. Cailaghan
would

I would argue that that would be

something Your Honour has to focus on in each


of the different witnesses.

I anticipate there

will be two areas or two main areas that my


5

friend will point to to suggest that


Ms.

was not a reliable witness.

is the suggestibility of her memory,

One

and two,

the addition of new details or the


inconsistency of her memory as it unfolded.
10

Your Honour should carefully consider the


evidence in this area.

In response to my

friends anticipated submission,

it is the

Crowns position that Ms.

provided an

explanation for why her memory changed with


15

respect to things like the hair extensions,


telling the media that there was no intimacy
when she was

sorry.

Excuse me

that there

was no intimacy when she testified that her


hair was pulled while Mr.
20

Ghomeshi was kissing

her in the car or whether or not her head was


smashed into the car.

She told the court that

her memory became more clear and solidified as


she spent more time thinking about the events
in question and as she evoked the memory from
25

the dredges of her mind.

We have to recall she

tried to push this memory down.

Bringing back

this memory was painful to her.

It took time,

and only upon reflection was she able to


provide the details she did while testifying.
30

We then look at the issue of credibility with


Ms.

there is no

To start with,

and to be clear,

Im not attempting to shift the

Publication Ban

24.
Submissions of Mr.
burden.

But

credibility,

but,

Callaghan

in assessing Ms.

YourHonour can consider that

there was no motive to fabricate alleged.


respect to inconsistencies,
5

a number of alleged

inconsistencies were put to Ms.

about

comments she made in the media.


occasions,

With

On a number of

she indicted they were misquotes.

In relation to portions of the Toronto Star


article and other print articles,
10

theres been

no evidence called by the defence to contradict


these assertions and,

therefore,

these should

not be relied on in assessing the witnesss


credibility.

Ms. Henein may point out a number

of examples where Ms.


15

testified to new

or different details in her evidence at trial.


The Crown will ask Your Honour to carefully
consider whether the differences are
significant or do they pertain to peripheral
issues.

20

Given the passage of time,

is it

possible that these inconsistencies relate to


the regression of memory as explained above as
opposed to being negative reflection on her
credibility?

Your Honour will also have to

seriously consider the email communication


25

that Ms.

sent to Mr.

Ghomeshi despite

indicating that she didnt want to have


communication with him.

However,

when

confronted with these communications,


Ms.
30

provided an explanation that is

open to Your Honour to accept.

She was

confused by what happened between her and


Mr.

Ghomeshi,

and she needed the closure of an

Publication Ban

25.
Submissions of Mr. Callaghan
explanation.

We may not have all engaged in

the same type of behaviour that Ms.


did,

but that alone should not be enough to

reject this explanation.


5

I urge you to recall

what I submitted to the court earlier about


relying on stereotypical assumptions of how
victims of sexual violence should react and the
role of these myths in assessing credibility
and reliability.

10

Ms.

What is clear is that

did not waver in her evidence

that, without her consent, Mr.

Ghomeshi

violently pulled her hair while in his car and


again,

at his home, pulled her hair again and

repeatedly punched her.


15

context of romantic date.

Both occurred in the


There was nothing

improbable or implausible about the recounting


of these events.

Even if Your Honour chooses

to reject some of Ms.

evidence,

it

is open to accept this portion of her evidence


20

given that she so steadfastly stuck to it and


it is essentially unchallenged in cross
examination.
Ms.

DeCoutere.

Im gonna

turn now to

Looking at the issue of

reliability and looking at the need for


25

confirmatory evidence where it should be


available,
Mr.

I think its clear Ms.

Ghomeshi were employed in the Canadian

television industry.
Mr.
30

DeCoutere and

Ghomeshi,

Ms.

DeCoutere and

they met in Banff in 2003 and

commenced email communications.

Ms.

DeCoutere

attended Toronto the weekend of July the


th1,
6

2003 and spent time with Mr.


Publication Ban

4
t
h

Ghomeshi

to

26.
Submissions of Mr. Callaghan
during that time period.
Mr.

DeCoutere and

Ghomeshi engaged in a romanti

relationship.
assault,
5

Ms.

Ms.

Subsequent to the alleged sexual


DeCoutere and Mr.

Chomeshi would

see each other at various industryrelated


events.

Looking at the concern about the

abundance of detail in cases involving distant


events,

Ms.

DeCoutere had clear recollection of

many events that impacted on her during that


10

period and during the alleged sexual assault.


She was also
details.

she was unclear on other

She testified she was unclear on some

of those issues that she felt were unimportant


or irrelevant.
15

As Id indicated before,

the

absence of evidence available to support the


complainants testimony,

Im going to suggest

to you its not surprising in a case of this


nature that you wouldnt find that type of
evidence and,
20

with the passage of time,

Your

Honour obviously should approach carefully the


witnesss evidence and,

looking at the

vicissitudes and influences of life that may


have influenced their memory.

25

In looking at

Ms.

DeCoutere and the issue of credibility,

Ms.

Henein will likely point to the failure of

Ms.

DeCoutere to disclose her post-assault

communications with Mr.

Ghomeshi as a reason to

make a negative credibility finding against


her.
30

Ms.

DeCouteres position was that the

communication and contact with Mr.

Ghomeshi

post-assault were part of her clear attempt to


normalize relations with him.
Publication Ban

Ms.

DeCoutere

27.
Submissions of Mr. Callaghan
testified consistently that her personality
abhorred awkwardness,
comfortable with Mr.
for her.
5

and that making things


Ghomeshi was a priority

She knew she would have dealings with

Mr.

Ghomeshi in the Canadian arts community.

Ms.

Henein may ask Your Honour to find that

Ms.

DeCoutere deliberately did not disclose

some of her postassault communications in an


attempt to mislead the court about the nature
10

of her relationship with Mr.


Ms.

DeCoutere explained,

Ghomneshi.

in her mind,

But,

as

the post

assault contact was not relevant to the sexual


assault that took place at Mr.
July of 2003.
15

Ms.

Ghomeshis home

DeCoutere acknowledged that

she did not recall some of the communications


between herself and Mr.

Ghomeshi until she was

provided with the e-mail communications which


refreshed her memory.
consider Ms.
20

Your Honour should

DeCouteres explanation in the

context of her avowed desire to normalize the


negative experience she had with Mr.
The defence may also point to Ms.
strong dislike of Mr.

DeCouteres

Ghomeshi as some kind of

negative attack on her credibility.


25

Ghomeshi.

It is

important to remember the context of these


conversations.
Ms.

The conversations between

DeCoutere and Ms.

were happening

because they were both living a shared


experience and were participating,
30

suggest to you,

Im going to

in an informal support network.

These are two women who both say they


experienced violence at the hands of the same
Publication Ban

28.
Submissions of Mr.
person.

Callaghan

They were reaching out to each other

to vent and to support each other.

They relied

on each other to get through this process and,


in that context,
5

they had some pretty negative

things to say about Mr.

Ghomeshi.

Given the

comments were being made in this context,

it is

hard to see how they could detract from their


credibility.

Ms.

Henein,

implicitly alleged Ms.


10

in crossexamination,

DeCoutere was motivated

to fabricate her allegations for the media


attention that ensued.

Certainly,

the line of

crossexamination was put to her that she was


reveling in this attention.

Ms.

Dunsworths

evidence provides a powerful rebuttal to that


15

allegation of recent fabrication.


Ms.

DeCoutere was also cross-examined

extensively on her
Ms.

her communications with

implicitly raising the issue of

collusion or tainting.
20

Ms.

DeCoutere told Ms.

choked by Mr.

The fact that


Dunsworth about being

Ghomeshi more than a decade ago

can also assist Your Honour in your assessment


of the issue of collusion or tainting.

When

looking at the analysis in relation to


25

Ms.

looking at the reliability

analysis,

theres a number of confirmatory

pieces of evidence that we can point to.


Certainly, we know that Ms.
same circles,
30

Mr.

Ghomeshi.

was in the

if I could use that word,


She knew Mr.

Canadian music industry.

as

Ghomeshi from the

She had seen him for

number of years prior to formally meeting him


Publication Ban

29.
Submissions of Mr. Callaghan
in

in the intimate context.

Ms.

We know that

performed at the

festival in Toronto.

dance

There certainly is a

poster that was filed as an exhibit.


5

the time frame.

We know

We know that they had a

romantic relationship that really extended


between the window July the
3
r
d,

to August the

when we know that shes at the Pride Parade

in Vancouver and,
10

th
15

according to her evidence,

says Dont call me anymore.

There really can

be no concern about an abundance of detail


about this distant memory that should cause you
concern.

Ms.

was very forthcoming about

the fact that she didnt recall a number of


15

details.

The main details that stuck out in

her mind was the sexual assault that took


place.

Understandably,

had a lasting impact,

that was an event that

and she was easily

that was easily recalled by her.


20

examination in court,

But,

and

in her

Your Honour will recall

there were a number of other details that she


simply couldnt recall due to the passage of
time,.

Ms.

s recollection of the events

in question was vigorously challenged in cross25

examination.

Despite this,

she clearly

maintained that she had a vivid recollection of


Mr.

Ghomeshis hands around her neck and that

of his hands on her mouth,


making it hard to breathe.
30

Ms.

smothering her,
Given how candid

was about what she didnt recall,

this court can take confidence in what


Ms.

did recall,
Publication Ban

especially given some

30.
Submissions of Mr. Callaghan
of the confirmatory evidence supporting her
account.

It is anticipated that my friend will

challenge the reliability of Ms.


memory by relying on what was put to the
5

witness as a reenactment wherein Ms.


appears to be unclear in what happens to her.
When questioned about this, Ms.
clear to say
to her,

10

was

and there was a video clip put

youll recall,

wasnt a reenactment;

Your Honour
rather,

that

she was speaking

with her hands and she was gesticulating that


this was describing the entirety of the
scenario.
that Mr.
15

This was not meant to convey the act


Ghomeshi inflicted on her.

And,

in

terms of the absence of evidence to support the


complainants testimony,
suggest,

Your Honour,

similarly,

I would

this is not the type of

case one would anticipate finding external


evidence,
20

and it is one where,

with the passage

of time and the vicissitudes of life, Your


Honour should carefully consider the evidence
of each witness in that context.

Turning to

the issue of credibility of Ms.

its

anticipated that Ms. Henein will challenge her


25

credibility in three ways.


inconsistencies
inconsistencies,

In terms of

with respect to
a number of alleged

inconsistencies were put to Ms.


comments she made in the media.
30

occasions,
misquotes.

of
about

On a number of

she indicated that they were


In relation to portions of the

Toronto Star article and other print articles,


Publication Ban

31.
Submissions of Mr.

Callaghan

there has been no evidence called by the


defence to contradict these assertions and,
again,

they should not be relied on in

assessing he witnesss credibility.


5

anticipated that Ms.

It is also

s credibility will

be challenged based on how many hands she


recalls Mr.
Ms.

Ghomeshi used to choke her.

Its

was clear that she didnt have a

good recollection, but shes very clear that a


10

hand was put around her neck and over her


mouth.

Again,

this is not so much as an

inconsistency as it is as a product of the


passage of time.

Ms.

was crossexamined

vigorously about her communications with


15

Ms.

DeCoutere.

In considering the tainting

impact of this communication,


consider,

1,

Your Honour must

that there was never a detailed

disclosure of the events that each suffered at


the hands of
20

Mr.

Ghomeshi,

and 2,

the

the

actions described by each are not similar


enough as to raise Your Honours
submissions

(ph),

in the Crowns submission.

The defence may also point to Ms.


strong dislike of Mr.
25

Ghomeshi,

not unlike the

submission I made in relation to Ms.

DeCoutere.

But I think the same submission applies.

These

are two individuals who were going through the


same experience.
situation with Mr.
30

They had had the same type of


Ghomeshi.

They were both

now thrown into the criminal process,

and it

became very much part of an informal support


network.

They were reaching out to each other


Publication Ban

32.
Submissions of Mr. CaJ.laghan
to vent,

to support,

and I think thats how you

have to really look at those communications.


They were informal communications.

They

they

were two friends venting about a shared


5

experience.

And I think,

were made in that context,

given the comments


its really hard to

see how that could detract from the

10

credibility,

in the Crowns respectful

submission.

Where I think Ms.

Henein will

may largely focus is that Ms.

s late

disclosure of the sexual encounter she had with


Mr.

Ghomeshi shortly after the assault in the

park, Ms.

admitted that she did not

disclose the encounter to police when she was


15

asked for two reasons.

She initially

maintained that it was because it wasnt


relevant and that she hadnt specifically been
asked the question about that conduct.
think Ms.
20

But I

did come to admit that she

withheld the information from the police


because she was embarrassed by her error in
judgment.

She also maintained that it in no

way negated the fact that she was sexually


assaulted by Mr.
25

Chomeshi.

The fact that some

witnesses may be embarrassed to tell the police


about these type of events is certainly not
difficult to comprehend.

Ms.

in

particular conveyed this embarrassment to the


court.
30

It is open to Your Honour to accept

that explanation.

Your Honour,

of these proceedings,

in the course

Your Honour has heard

evidence that may cause you to have concerns


Publication Ban

33.
Submissions of Mr. Callaghan
about reliability and credibility of some of
the witnesses in the case.
of fact,

as the trier

as Ive indicated above,

shouldnt
5

But,

that

thats not the end of the analysis.

The witness has provided explanations to Your


Honour as to why there may be some
inconsistencies,

some delayed disclosure or

some omissions in their evidence.

Your Honour

may be satisfied with their explanations, but


10

the real issue for Your Honour to decide is


whether,

in considering the entirety of the

evidence in this case and the applicable


jurisprudence,

15

you are convinced beyond a

reasonable doubt that Mr.

Ghomeshi sexually

assaulted

Lucy DeCoutere,

and

Notwithstanding vigorous crossexamination,

all three of the Crowns witnesses

were unshaken in their allegations that they


were sexually assaulted by Mr.
20

Ms.

Ghomeshi.

did not waver in her evidence

that, without her consent, Mr.

Ghomeshi

violently pulled her hair while in his car and


again pulled her hair and repeatedly punched
her in the head at his Riverdale home.
25

Both occurred in the context of romantic


kissing.

Ms.

DeCoutere was resolute in her

allegation that Mr.


kissing,

Ghomeshi,

in the course of

choked her and slapped her in the face

three times without her consent.


30

Ms.

was clear that Mr.

And

Ghomeshi put his

hand around her neck and over her mouth,


preventing her from breathing.
Publication Ban

The evidence on

34.
Submissions of Ms. Robitaille
these key points
alleged

the very offences being

was steadfast.

Those are my

submissions,

Your Honour.

MS.

Your Honour,

HENEIN:

Im wondering if I

could just ask for a few moments and then move


on to the...
THE COURT:
MR.

You want to take 20 minutes?

CALLAGHAN:

THE COURT:

Sure.

Well do that.

10
RECESS

UPON

RESUMING:
MS.

15

HENEIN:

Thank you,

Your Honour.

Just so

you have a road map of how well be presenting


our argument,
Ms.

weve divided it up.

Robitaille will be addressing the evidence

that youve heard before you with reference to


the transcripts.
20

And I understand the court

has been obtaining copies of the transcript.


And then,

Im gonna

address the law and how

the law applies to the case before you in some


legal principles,

some of which have been

touched upon by the Crown and others which have


25

not.

So,

with your permission,

well proceed.

SUBMISSIONS OF MS.
MS.
30

Thank you.

ROBITAILLE
ROBITAILLE:

Your Honour,

handout that I provided Mr.


THE COURT:
MS.

thats how

there is a

Clerk.

Thank you.

ROBITAILLE:

And it is just an aide memoire

Publication Ban

35.
Submissions of Ms. Robitaille
for Your Honour.

I dont propose to go through

it in order or in detail,

but the transcripts

references are there for you and I hope that


theyre of assistance.
5

What I will do is cover

a few areas in the witnesss evidence that we


say ought to concern Your Honour in the areas
of credibility and reliability.

And so,

I will

deal with the evidence presented before Your


Honour.
10

Ms.

If we can deal firstly with


And my friend was fair in

pointing out that inconsistencies are often an


area where the trier of fact will look to when
assessing credibility and reliability.

The

first area of inconsistency that we say Your


15

Honour should consider in relation to


Ms.
recall,

is on count 1 in the car.


Your Honour,

that Ms.

Youll
gave a

number of media interviews before she went to


police.
20

And,

in those media interviews,

characterized an assault in the car very


differently than

than how she ultimately

characterized it to the police.


with the media,
pulled by Mr.
25

she

When speaking

she indicated that her hair was

Ghomeshi out of the blue and that

it came at a time when she was not being


intimate with Mr.

Ghomeshi.

So,

you recall the

description provided to the CBC on the radio


and on TV was of this reaching over and pulling
of hair.
30

And to be clear,

this is not the

account she provided the Toronto Star that she


ultimately resiled from when she testified.
This is the account she provided to the CBC,
Publication Ban

36.
Submissions of Ms. Robitaille
that they were not being intimate or anything.
When she spoke to police, Ms.
initially told a similar story of this reaching
over and hair pulling but,
5

in her police statement,

as she went further

she ultimately

conceded that the kissing and the hair pulling


in the car were intertwined.
trial,

Finally,

she added that the kissing was sensuous

or sensual kissing in the car.


10

at

Ms.

explained this inconsistency between her


version to police and the version she provided
the media as follows.

She said that she

the time she was speaking to the media,


not sure of the order.
15

at

she was

She was not sure of

when she was kissed in terms of whether it came


at the same time as the hair pulling,
after.

before or

And it was for that reason of her

lacking clarity on the order that she didnt


put it in,
20

to use her words.

deliberately left out the

So,

she

the kissing that

was intertwined, because she was unsure about


the order and she deliberately withheld it from
the media.

She

youll recall there was

another inconsistency.
25

trial,

she said that the question Do you like

this?

Do you like that came after the hair

pulling.
that it

In her statement to police,

that thats what she


oath.

she said

the question came during the hair

pulling and kissing.


30

When she testified at

And so,

Your Honour.

She ultimately conceded

she told police under

you have an inconsistency there,


Ms.

Publication Ban

also,

not

37.
Submissions of Ms. Robitaille
insignificantly,

testified she could not recall

what her answer to the question was,


question of Do you like this?

this

Do you like

that that happens during this intertwined hair


5

pulling and sensuous kissing.


recall her answer.
Honour,

She cannot

Those inconsistencies,

Your

go to the question of whether or not

the Crown has proved beyond a reasonable doubt


that this incident in the car ever happened.
10

And it also,

in my respectful submission,

should go to whether or not the Crown has


proved the absence of consent beyond a
reasonable doubt.

Youll recall Ms.

memory about the car incident continued to


15

evolve through the months of this prosecution.


She gives her police statement on November
2014.

The next day,

1
s
t,

she e-mails the police to

advise them that she very clearly remembers


that she was wearing hair extensions at the
20

time of the hair pull.


is unclear when

Ms.

At some point

and it

reversed this

memory or no longer held this memory

this

very clear memory of wearing hair, extensions.


And it is a significant consideration for Your
25

Honour that this witness did not advise police


for 16 months that she had changed her mind
about this issue of the hair extensions and
that her not advising police or failure to do
so comes mv in a prosecution where there are

30

open lines of communication between the police


and the witnesses where they are emailing and
calling each other frequently and where the
Publication Ban

38.
Submissions of Ms. Robitaille
complainant has counsel and has met with the
Crown Attorneys.

She also explained in this

November 2 e-mail that

to

to the police

that she was starting to remember that her head


5

was smashed into the window during this


incident.
that,

10

there was no head smash.


the Toronto Star,

radio,

the police,

a head smash.
of

Your Honour,

in the four previous tellings of the

story,
the

And youll recall,

the CBC,

she told

on TV,

on the

and nowhere in there was a

But she emails police to advise

of this new recollection.

from it but,

So,

again,

She resiled

only in crossexamination,

having not told anyone for 16 months that she


15

no longer took that position or no longer


believed that that was what happened.

And when

this was put to her in the course of crossexamination,

youll recall the witness

indicated that,
20

when she was e-mailing police

about these new memories,

she was

the quote

is throwing thoughts at the investigators.


In my respectful submission,

that explanation

does not assist Your Honour,

and this

issue of reviving memories,


25

investigators about them,

this

telling

resiling from those

memories and then failing to tell police ought


to cause Your Honour significant concern on
this count.

Youll recall also, while

were in the car,


30

that Ms.

while

was adamant

that she did not tell police that her hair was
pulled towards the back of the seat.

Ms.

Henein put to her that that is what she


Publication Ban

39.
Submissions of Ms. Robitaille
described to police,

that her hair was being

pulled back towards the seat.


refused to admit it and,

Ms.

ultimately, when the

video proof of that fact was put to her,


5

still had significantly


difficulty conceded
fact,

significant

conceding that thats,

what she told investigators.

Ms.

Ms.

in

In terms of

s account of in the house

and my friend has


10

she

and

has said that

s account of the house was

somewhat unchallenged,

was

the position of the

defence is there was a full attack on the


events at the house.

There were a number of

inconsistencies and implausibilities about the


15

account of the house that were put to this


witness,

and she had significantly

significant difficulty in explaining why it is


she was not able to come up with a coherent
account of the events.
20

Ms.

Youll recall that

told the Toronto Star and CBC TV

that she was pulled down to the floor by her


hair, but she told CBC Radio that she was
thrown to the ground.

Ultimately,

what she

tells police is that the events are very blurry


25

and that she does not know how it is that she


got to the ground.
her that there was

And,

when Ms.

1-lenein put to

that she had said thrown

and she had said pulled on different occasions


and that she had also told the police she could
30

not remember,

this witness testified and

maintained that being thrown and being pulled


were the same thing.

In terms of the other

Publication Ban

40.
Submissions of Ms. Robitaille
prong of the defence challenge to the
account of what happens in the car,

this

youll

recall that this witness gave evidence about


yoga moves,
5

that she was

she was in the midst

of doing yoga moves at the house,


up and down off the couch.

that she was

She had a very

difficult time explaining what it is exactly


both of the parties were doing in and around
this assault.
10

witness stand
trial,

She

by the time she hits the

by the time she testifies at

she remembers more kissing than she did

in her police statement,

and that is another

significant inconsistency for Your Honours


consideration.
15

And while Your Honour considers

these inconsistencies,

it is appropriate,

respectful submission,

to take a look at what

in my

the witness is able to recall in this time


period.

She has

this is a witness who has

very detailed memories of Mr.


20

the guests he had on his show,


of his that she met with,
drink at the pub,

cetera.

And so,

Honour sometimes
25

Ghomeshis show,
the colleagues

what they had to

the weather,

her clothing,

this is not a witness,

et

as Your

as appear before Your Honour

sometimes that has difficulty with remembering


10 years ago.

This is a witness who has very

detailed memories about the events of the time


period but simply cannot come up with a
coherent account of what happened in that
30

house.

Ms.

gave a couple of different

explanations for why it is her version is


inconsistent.

When inconsistencies between her

Publication Ban

41.
Submissions of Ms.

Robitaille

police statement and her evidence at trial were


put to her,

youll recall that Ms.

indicated that her memory


right,
5

Your Honour.

just want to get it

She explained that her

statement to police was taken in the early


days of her memory and that,

for her,

memory improves as she sits with it.


respectful submission,

her
In my

that explanation does

not assist Your Honour when a statement is


10

taken 12 years after the events.

We know

experienced trial judges know that memories


dont get better over time.

The

the witness

also explained that she was nervous during her


police interview.
15

And I know my friend

referred to that in his submissions.

And I ask

that you consider that evidence in conjunction


with the media interview she gave immediately
after giving her statement to police where she
indicated that the police treated her with
20

respect and care and she was not judged and the
process was a lot easier than she thought.
And so,

when this witness gives the explanation

that the inconsistencies between her sworn


police statement and her sworn trial evidence
25

can be explained by her nervousness with the


police,

I ask that Your Honour take a look at

her interview wherein she describes the process


as a lot easier than she thought.
testified,
30

Ms.

and this was something that she had

said over and over again in the media and to


police,
house,

that the trauma of the events at the


count 2,

were so significant,

Publication Ban

that every

42.
Submissions of Ms. Robitaille
time she heard Mr.

Ghomeshis voice or saw him

on the television,

she had to turn

turn it

off because of this reliving of the trauma.


She testified that she was not even able to
5

listen to Q with the new host.


so that were clear,

And just

Your Honour,

the

submissions with respect to Ms.

just

the
S

contact with Mr. Ghomeshi after the assault


the alleged assault
10

relate to what it is she

told police under oath she did.

It is not

based on any stereotypical assumptions or


anything having to do with how it is women
should behave after being assaulted.

What it

has to do is with this witnesss adamant


15

evidence under oath that she had to turn off


the TV,

that she would not go back near him,

she would not contact him again,


contacted her,
evidence.
20

Honour

et cetera.

That

he had not
-

that was her

And Exhibits 2 and 3 before Your

and Mr.

Clerk should have it for you

these are the emails,


Ms.

2 and 3,

sent to Mr.

that

Ghomeshi.

They were

sent one year and one year and a half after


this alleged incident at the house.
25

they prove is that Ms.


Mr.

Ghomeshi again,

him on TV,

indeed saw

that she enjoyed watching

and that she wanted Mr.

contact her by e-mail and phone.


e-mails that Ms.
30

police.

And so,

And what

Ghomeshi to
These are the

never disclosed to
when Your Honour looks at what

is the significance to attach to the subsequent


communication to

with Mr. Ghomeshi,

Publication Ban

the

the

43.
Submissions of Ms. Robitaille
significance aligns perfectly with the
witnesss own paradigm.

Youll recall this

witness explained to police Look,

this event

was so traumatic for me,

I had to stay away.

couldnt listen to him.

I couldnt watch him.

That is her own explanation of how she reacted.


Its no one elses.

And what Exhibit 2 and 3

prove is that that explanation


under oath to police
10

that evidence

was false.

The witness,

for the first time in examinationinchief,


disclosed that she had sent an e-mail in anger
to Mr.
airing.

Ghomeshi she believed at the time Q was


Couple of things about this

explanation,
15

Your Honour.

At the time these e

mails were sent, Q was not on the air.


an agreed fact between the parties.
respectful submission,

Thats

And,

in my

Your Honour ought to be

very concerned about the pattern of disclosure


by Ms.
20

this

anger.

So, what we had in chief is


this business of an email sent in
She did not disclose to Mr.

Callaghan

when being examined what it is she was talking


about.
it.
25

Ms.
-

It was the first the defence heard of

And then,
Henein

mail,

this

this

Henein said You sent an angry e

and Ms.

correct Ms.

when

and I can get these cites for you

Ms. Henein put to her this

e-mail, Ms.

30

in cross-examination,

was very careful to

Henein and said No.

it was an angry email.


mail sent in anger.

I didnt say

I said it was an e

And let me

let me show

you something that some of us might have missed


Publication Ban

44.
Submissions of Ms. Robitaille

in Ms.

s evidence.

If you could turn

with me to the February 2 transcript,


Honour,

at page 50.

THE COURT:
5

MS.

Your

Got it.

ROBITAILLE:

Youll recall Ms.

Henein was

putting to this witness that she was asking in


the emals for Mr.

Ghomeshi to contact her,

contrary to her evidence.


start at line 21,
10

And,

if I could just

where the witness answers

I wanted him to call me.


Question.

Yes.

You did want him to call you,

but you didnt tell the police about that.


Answer.

I didnt remember.

Question. And you didnt tell the Crown.


15

Answer.

That.

Question.

You just said a few moments ago you

did remember.
Answer.

No.

statement.
20

I did not remember when I did my


I did not remember until pretty

recently that I remembered putting together an


email.

But I remembered reading these,

knew the motivation behind the picture,


of this was to get Mr.

and I
and all

Ghomeshi to phone me so

I could ask him why he punched me,


25

and she goes on.


Honour,

that

The

the part here,

Your

that some of us might have

missed during her testimony is this witnesss


evidence that I remember reading these which,
in my respectful submission,
30

is evidence that

this witness knew about these emails before


she hit the witness box.

They didnt go into

some deep recess of her mind.


Publication Ban

She knew about

45.
Submissions of Ms. Robitaille
them.

He had reviewed them.

She telegraphed

that in her examination-inchief with


Mr.

Callaghan,

corrected Ms.

Heriein at the

outset of her crossexamination,


5

and then let

it slip near the end that she had,


reviewed them.
areas

And so,

the

in fact,

the two

there are a number of areas that

the two

of

this witnesss credibility and reliability that


are impacted by these emails.
10

Obviously,

main issue is that this witness lied about her


contact with Mr.

Ghomeshi afterwards,

wanted him to call and she was not,


police under oath,
to avoid his shows.
15

the

that she

as she told

trying to avoid him,

trying

But the other concerning

issue with respect to these e-rnails is this


witnesss failure to disclose them and her
effort to conceal them from the court.
that,

in my respectful submission,

And

should cause

this court with very grave concerns in


20

accepting any of her evidence,

especially the

events she describes that make out count 1 and


2.

In my respectful submission,

Ms.

evidence cant be relied on at all.


move now to
25

s
If I can

Your Honour, which is

the third witness that I deal with in my


handout.

Here

here are the main areas weve

put forward for Your Honours consideration in


relation to Ms.
Ms.
30

Youll recall

had a approximately a five or six

week period between when the scandal in


relation to my client erupts on October
when she ultimately goes to police the
Publication Ban

th
26

and

46.
Submissions of Ms. Robitaille
beginning of December.
Ms.

And,

in that period,

speaks to and sees a number of

people and is influenced in a number of ways.


She admits that,
5

in that time period,

she gives her statement to police,

before

she is

consuming media stories about the case.

We

also know that she spends a significant amount


of time speaking with and messaging
Ms.
10

DeCoutere,

case.

another complainant in this

significantly,

And,

course of this prosecution


earlier than that,
September 2015,
between Ms.
15

over the

the life

actually, a bit
from October 29 to

there are 5,000 messages


and Ms.

DeCoutere.

youll recall that Ms.

And

told

Mr. Callaghan in chief that she and


Ms.

DeCoutere did not speak about the specifics

of their allegation.

And it was only in cross

examination where specific entries of their


20

Pacebook correspondence were put to her where


she finally admitted that,

yes,

in fact,

had talked about the specifics of their


allegations.
about.
25

Ms.

they

their

And that was not all they talked


DeCoutere and Ms.

about third party witnesses,


disclosure to defence,
with the Crowns.

spoke
the process of

court dates, meetings

There was a very full and

frank discussion between the two of them about


all matters relating to this case.
30

They

described themselves as Insta sisters and


Ms.

urged Ms.

DeCoutere to lead the pack

in relation to this prosecution.


Publication Ban

They shared a

47.
Submissions of Ms. Robitaille
publicist and they shared a lawyer.
Hnatiw was Ms.
met with Ms.

DeCouteres lawyer and she also

DeCoutere on at least three

occasions in the fall of 2014,


5

2015.

Ms.

Gillian

in the spring of

DeCoutere told Ms.

that she

would lead the pack and that

s statement

would be part of the Jenga tower against


Mr.

Ghomeshi.

Honour,
10

And it is in that context,

that I ask you to consider the animus

expressed by Ms.

against Mr. Ghomeshi.

Youll recall that Ms.

told the court

admitted her statement that,


hearing,
with
15

Your

at the first bail

the bail hearing she had nothing to do

she wanted to cozy up with a bowl of

popcorn and a shit eating grin,


to see Mr.

Ghomeshi cooked,

sink the prick,

that she wanted

that it was time to

and that she would do anything

she could to put him where he belongs.

These

were the things these two witnesses were


20

talking about leading up to the trial,


Mr.

Callaghan,

in his submissions,

and even

indicated

that partiality is something appropriate for


Your Honour to look at when assessing
credibility and reliability.
25

submission, Ms.

In my respectful

s description of the

events at the park are vague.


uncertain.

And,

They are

in fact, when she told police

about them in November of 2014,


much of the description of
30

she qualified

of the events.

She told police he was kind of squeezing,


were kind of around my neck.

She was unsure

if it was one hand or two hands.


Publication Ban

They

By the time

48.
Submissions of Ms. Robitaille
she gets to the witness box,
Honour,
neck.

Your

she describes two hands around her


Again,

it is an event that lasts,

according to this witness,


5

of course,

seconds.

she is at the police station,

But when

what she

testified was that she was trying to figure it


out,

trying to figure out what it is that

happened.

And,

in my respectful submission,

its still difficult today to figure out what


10

it is this witness says happened on that bench.


Significantly, Ms.
this

added that,

this incident on the bench,

prior to

she was

engaged in a make out session with


Mr.
15

Ghomeshi.

That

added at trial.

that was a new detail

And youll recall her evidence

with respect to why it is she didnt complain


to police contemporaneously and why it took her
so long to get to police.

What she testified

to and accepted from her police statement is


20

the following:
I dont really feel like theres anything to
press charges against,

you know?

That was this witnesss evidence under oath to


the police and she acknowledged it here before
25

Your Honour.
Honour,

This was another witness,

who used her subsequent noncontact

with Mr.

Ghomeshi as a way to bolster the truth

of her allegations.
Ms.
30

So,

youll recall that

testified that,

in the park,
again,

Your

two things.

after this incident


She did date him

but she did it in public.

wanted to be in public.
Publication Ban

She

she

Thats what she told

49.
Submissions of Ms. Robitai].le

police,

and she described subsequent dates.

She also said that,

after she broke up with him

after the fourth date,


distance,
5

she always kept her

she felt unsafe around him,

had occasional run-ins.

So,

and only

those were the two

ways she described her subsequent contact.

So,

lets just deal with the post-break-up always


keeping her distance,
occasional runins.
10

Mr.

Ghomeshi,

and only

You have before Your

Honour Exhibit 41.


on February 25,

feeling unsafe,

And this is the e-mail sent

2004 from Ms.

to

and this is sometime after the

events on the park bench.

And it was put to

this witness in the course of cross15

examination.

She tried to explain the email

as a professional email,

an e-mail that she

sent in her professional capacity.

And she

reviewed the contents of the email that


included a
20

Mr.

Ghomeshi.

a request to have a drink with


The quote is Still wanna have

that drink sometime.

And,

even though this

witness, when confronted with the e-mail,


conceded that it did not look like a
professional email.
25

Your Honour,

I ask that you look at this email

sent February
after

But, more significantly,

th,
24

or a year

2004,

just a few months

its over a year,

actually,

after the events described on the bench,


and look at the language,
30

Ms.

addresses Mr.

Princess.
open,

Your Honour.

and
The

Ghomeshi as Hiya

And the email is very friendly and

and theres the request at the end Still


Publication Ban

50.
Submissions of Ms. Robitaille

wanna have that drink sometime.


respectful submission,

the

In my

the language and

tone of this email stands in such stark


contrast with the language expressed between
5

Ms.

and Ms. DeCoutere about wanting to

sink the prick,


how it is

fuck Ghomeshi,

et cetera.

And

how do we explain the difference?

How do we explain the difference between this


witnesss interaction with Mr.
10

months

Ghomeshi 7

a mere 7 months after what she has

described as a sexual assault and the tone that


she has 12 years later,
hates Mr.

Ghomeshi and will do anything to put

him away.
15

It is a very confounding bit of

evidence,

Your Honour,

respectful submission,
of Ms.

where she very much

and

and,

in my

the intervening factor

DeCoutere goes a long way to explain the

difference.

Ms.

explained to police

that she went on four dates with Mr.


20

that she was at

on

at a dinner date on the

Danforth on one occasion,


another,

Ghomeshi,

on the park bench on

at a King Street bar and dinner on a

third occasion,

and a party on a fourth.

Thats what she told police after they asked


25

her to give as much detail as possible.


Exhibits

wont turn them up,

Theyre electronic.

And

Your Honour.

But Exhibits 43 and 44 are

the excerpts of that statement to police where


Detective Ansari and Detective Hancock are
30

trying to get from this witness what it is


exactly that happened between the parties.
Detective Ansari is asking Ms.
Publication Ban

to go

So,

51.
Submissions of Ms. Robitaille
over exactly what the dates were,
they go,

who did they see,

cetera.

And the

with me,

what did they do,

the witness,

answering those questions.


Your Honour,

where did

under oath,

And,

et
is

if you turn up

Exhibit 46,

which is the

agreed statement of facts.


THE COURT:
MS.

Yeah,

ROBITAILLE:

chronology,
10

there.
So,

Thanks.

just so you have the

Ms.

gives her police

statement in December of 2014.

If you go to

item 10 on our agreed statement of fact.


THE COURT:
MS.

Right.

ROBITAILLE:

Youll see that there were

further meetings with Ms.


15

2015,

in May,

February

2
n
d,

in August,
2016,

all of that time,

in February of
in January,

just this month.

and on
And,

the prosecuting authorities

are operating under the assumption that


the understanding,
20

for

or

because shes testified to

it under oath at the police station,

that

Ms.

and that

went on these four dates,

was the extent of her interaction with


Mr. Ghomeshi,
Ms.
25

these four public dates.

And

is here in the courthouse on

February 2,

preparing to testify,

and she says

nothing about this further sexual interaction


with my client.

It is not until February

4
t
h,

when she gives the second statement to police,


this 9 minute second statement to police,
30

revealing that,

contrary to what she had told

police,

her dates with Mr.

public,

that,

in fact,

Ghomeshi were not in

after the third date,

Publication Ban

52.
Submissions of Ms. Robitaille
she took him home,
interaction,
her bed.

and there was a sexual

and he spent some time sleeping in

In my respectful submission,

that

chronology of this disclosure should weigh very


5

heavily in Your Honours assessment of this


witnesss credibility and reliability.
too,

So,

should her explanation for why it is she

waited until the precipice of trial to come up


with the truth.
10

She claimed that she wasnt

asked specifically by the officers about


consensual sexual activity.
Your Honour,

Ms.

And youll recall,

Henein took her to the

portions of her statement where she was asked


about sexual discussions.
15

and over again to

She was asked over

to detail these dates.

But

she maintained for some period in her crossexamination the reason she didnt disclose it
was because they simply didnt ask the right
question.
20

She also maintained that her hand

job wasnt sex and it wasnt intercourse,

and

so she had been truthful in her statement.


But,

ultimately,

the witness conceded that it

was hearing a newscast about this case and


about emails being adduced in relation to
25

another witness that triggered this disclosure.


And,

when this business of being out in public

with Mr.

Ghomeshi, which was her version to

police, was put to her in cross-examination,


Ms.
30

ultimately conceded that she

deliberately misled police about her


interaction.

And so,

Ms.

Your Honour,

again,

Publication Ban

here,

the

just as

the submission

53.
Submissions of Ms.

Robitaille

from the defence isnt Wow.

Look at how this

witness interacted with my client after she


said she was assaulted.
submission.
5

Thats not the

The submission is this witness

told the police under oath that her


interactions with him were in public afterwards
and she detailed the dates.
said.

Thats how she characterized her

interaction.
10

Thats what she

And she lied.

She testified

before Your Honour that she believed the police


only wanted to hear about the bad stuff in
relation to my client and that she only told
them about the things that fit the pattern,
according to her.

15

I ask you,

Your Honour,

to

look at that explanation very carefully in


conjunction with the collusion that youve
heard about and the animus this witness
expressed against Mr.
whole,

20

Ghomeshi.

And,

as a

you ought to be left with deep concerns

about the bona fides of this witness who came


before you and tried to explain her lies under
oath to police.

25

Finally,

Ms.

IDeCoutere.

Ms.

Dunsworth,

Ms.

Dunsworths evidence

in relation to

If I could deal briefly with


in my respectful submission,

submissions on the motion

assist your task,

and you heard my

does not really

Your Honour.

Her evidence

does not help you resolve the real problem with


Ms.
30

DeCouteres evidence.

And theres a

section Id ask Your Honour to take a close


look at in her
Ms.

in her statement,

Dunsworths statement,
Publication Ban

where she says that

54.
Submissions of Ms. Robitaille
she receives this disclosure from Ms.

DeCoutere

fairly close to the event and that she


understood that Ms.

DeCoutere wasnt really

into him and that her interaction that night


5

kind of sealed the deal.


Ms.

Dunsworths recollection of

the story from Ms.


we know,

and

Ms.

to it,

What

in the

that theres no question

DeCoutere was into him.

she was.

of hearing

DeCoutere at the time.

and Ill get to

later exhibits,
10

Thats

And so,

Ms.

By her own words,

Dunsworths evidence with

respect to this utterance doesnt make a whole


lot of sense.
to Ms.
15

Here are the areas with respect

DeCoutere,

that Ms.

Your Honour.

Youll recall

DeCoutere testified in chief that she

had compassion for Mr.

Ghomeshi and that she

was not actually interested in engaging in any


legal action against Mr.

Ghomeshi at the time

she made her police statement.


20

examination,

of course,

And,

in cross

Henein put to her

Ms.

the statement she made to her friend,


Mr.

Kuttner,

police,

st
31

on October

before she goes to

that she was going to the police

station to press charges to get this ball


25

rolling.

And so,

even

even with respect to

what ought to be a fairly straight

straightforward issue of her motivation behind


giving the statement to police,
is inconsistent.
30

And

reluctant,
Dude,

DeCoutere

and that was put to her

in cross-examination.

Ms.

She

she told Ms.

with my background,
Publication Ban

far from being


the following:

I literally feel

55.
Submissions of Ms.

Robitaille

like I was prepped to take this on,


This trial does not freak me out.

no shit.
I invite the

media shit.
She expressed to Ms.
5

that she was

excited for trial because it was going to be


theatre at its best.

Ms.

DeCoutere too

intentionally concealed significant events from


police and the prosecution and the court.

And

lets deal firstly with the incident itself.


10

For the first time in examination-inchief,


Ms.

DeCoutere detailed these attempts

attempts at kissing on the walk home from


dinner.

That is not something she ever told

the media or the police in her sworn statement.


15

But,

in chief,

kissing.

she described these attempts at

She also described two episodes of

kissing after the assault at the house,

kissing

on the couch and kissing goodnight before she


left.
20

And youll recall Ms.

Henein put to her

that the sequence of events is as follows,


that,

while shes coming back from dinner to

the house,
advances,

she is rejecting Mr.


but,

Ghomeshis

after the assault,

shes kissing

him on the couch and shes kissing him


25

goodnight.

And her answer is fairly telling,

Your Honour,

when it was put to her,

you know,

how it is she missed the kissing in her


statement to Detective Ansari under oath.

And

she explained that she just didnt disclose it.


30

She had all

always remembered it.

in her statement to police,

Of course,

she told them that,

after the assault in that hour she spent at the


Publication Ban

56.
Submissions of Ms.

house,

Robitaille

nothing stuck.

And she testified she

didnt think the kissing was consequential.


And again,

I ask Your Honour to assess the

witnesss explanation in terms of this


5

inconsistency about it not being consequential.


I ask that you assess it in light of the items
this witness testified to that she believed
were consequential,

including the cheese and

her evidence that Mr.


10

shirts by colour,

Ghomeshi organized his

her evidence in relation to

the temperature of his house and the roses on


his table.

All of that evidence she gave to

police and she gave under oath here,

but she

missed the kissing when speaking to Detective


15

Ansari under oath.

I also ask that you assess

her explanation that she believed that brevity


and succinctness were important in her
statement to police with reference to the
segments of her police statement that
20

that

were filed where you see that this witness is


very relaxed and comfortable and the police are
taking their time with her.
the

the assault,

in chief,
25

In terms of the

this witness testified that,

for the first time,

submission,

that she had a

in my respectful
she had a clear

sequence of events where theres a push up


against the wall,
third slap.

two slaps,

a pause,

She acknowledged before Your

Honour that this was a new version.


30

and a

This was

not the version she provided to the media and


to the police prior to coming here.

To police,

she had indicated that the events were all


Publication Ban

57.
Submissions of Ms. Robitail].e
jumbled and I quote I dont remember the
order of events.

And I ask that Your Honour

assess the inconsistency of not really being


able to tell the police in the fall of 2014 the
5

order of events and then coming here,


later,
Ms.

and providing a

16 months

a flowing version.

DeCoutere told police under oath that she

didnt pursue any kind of relationship with


Mr.
10

Ghomeshi after that night at his house,

that it was a date that had a beginning and an


end and there were no lingering romantic
entanglements.

She told police that she would

only see him at industry events and she would


see him in passing,
15

but that everyone knew that

she didnt like him.

And youll recall she

told police about this event where a director


saw the look on her face when she saw
Mr. Ghomeshi and knew immediately that
something bad had happened.
20

That was her

evidence to police about her subsequent


interactions with Mr.
Ms.

there

Ghomeshi.

there was a

And,
-

sequence that occurred during trial.


February 2,
25

Ms.

2016,

a
It was on

in the course of trial,

that

DeCouteres lawyer floated a hypothetical

to the Crowns

and thats in the agreed

statement of fact
contact.

about postincident

And that is the first time that

anyone heard that Ms.


30

as with

DeCoutere had anything

else to say about her postincident contact


with Mr.

Ghomeshi 16 months after her police

statement.

And so,

the morning before she took

Publication Ban

58.
Submissions of Ms. Robitaille
the stand before Your Honour,

she sat down with

police and provided them with further details


of her interaction with my client.
them about sending him flowers.
5

She told

She told them

about seeing him in Banff the next year and


sending him e-mails.

She told police in that

brief interview before her testimony that

that those interactions were an attempt to


normalize the situation,
10

and thats,

in fact,

what she said to Your Honour in chief.

And

and Ill take you through how it is this


witnesss explanation for her contact evolves,
depending on what shes been confronted with,
because that is really what appears to trigger
15

the change in her evidence.

So,

really,

you go

from very inconsequential contact in her police


statement to her

in her first police

statement to her second police statement,

this

business of normalizing and neutralizing


20

contact with

Mr.

Ghomeshi.

And then,

a series

of emails were put to the witness in the


course of cross-examination.

You recall that

there are emails in Exhibits 13,


I wont take you to them,
25

and 15.

Your Honour,

but

those are the emails that relate to the


Geminis in 2003.

In examination-in-chief and

in her police statement,


about this

Ms.

DeCoutere talked

this incident where Mr.

made reference to,


30

14,

Ghomeshi

by touching her neck,

events of that weekend.

to the

And what she didnt

tell police in either statement or Your Honour


in chief was that she had communicated with
Publication Ban

59.
Submissions of Ms. Robitaille
Mr.

Shomeshi several times before the Geminis

to try to see him,

that she was trying to set

up a time where she could meet with him while


she was in town for the Geminis.
5

recall that there was


where Ms.

And youll

Exhibit 14

is an e-mail

DeCoutere says Sunday has a slot for

you in my mind.

And her evidence in response

to being confronted with that e-mail was that,

10

no,

no,

Mr.

Ghomeshi;

its not that she wanted to see

his show.
But,

its that she was gonna

watch

Thats how she explained Exhibit 14.

as youll see,

her description of what it

is that she wanted from Mr.

Ghomeshi is all

significantly depending on what it was that was


15

being put to her.


Your Honour,
Mr.

Exhibit 16 is the e-mail,

where Ms.

DeCoutere tells

Ghomeshj to brace himself because shes

going to be in Toronto and she wants to play


with him.
20

That is right before they have

dinner alone together at Allens on the


Danforth.
Honour,
no,

And again,

here,

youll recall,

that the witness still maintained,

that was a professional dinner.

Your
no,

She

guaranteed under oath in crossexamination


25

that,

after the events of that night,

no romantic feelings for Mr.

she had

Ghomeshi.

Exhibits 17 to 21 relate to her interactions


with Mr.

Ghomeshi in Banff in 2004.

And youll

recall how the witness described her


30

interaction with Mr.


chief.

In chief,

Ghomeshi in Banff in

she said that she only

interacted with Mr.

Ghomeshi in Banff because

Publication Ban

60.
Submissions of Ms. Robitaille
she was scared he didnt have any friends there
arid didnt know anyone,
to feel badly.
emals,
5

So,

and she didnt want him

if you look at those

Exhibits 17 to 21,

unequivocally is that Ms.


see Mr.

Ghomeshi.

what they show

DeCoutere wanted to

She continued to pursue this

the idea of meeting with him,

even when he

explained that he would likely be too busy.


And that wanting to make sure he wasnt lonely
10

is not an explanation for those emails.


is more plausible is that Ms.
to spend time with Mr.

DeCoutere wanted

Ghomeshi because,

contrary to her evidence under oath,


continued to have feelings for him,
15

What

she
and she

continued to want to have a relationship with


him.

As these emails got disclosed,

Honour,

youll recall that the

Your

the witness

changed her explanation from wanting to


neutralize contact to wanting to pursue a
20

friendship.

And so,

it was really near the end

of the crossexamination that we heard this


evidence for the first time,

that Ms.

wanted a friendship from Mr.

Ghomeshi.

DeCoutere
That

was brand new and triggered only when the


25

email evidence was put to her.


ask Your Honour to

And so,

to assess again this

I
the

pattern of disclosure or the pattern of


concealment with Ms.

DeCoutere,

police one thing under oath.


30

that she tells

She tells them

that she really didnt see him except for


professionally.
months later,

On the precipice of trial,

she gives a little more.

Publication Ban

She

16

61.
Submissions of Ms. Robitaille
talks about the flowers and Banff.

But shes

still not prepared to say anything but that she


was trying to neutralize the relationship.
Partway through the cross-examination,
5

she

comes up with this business of a friendship.


And its not until Exhibits 34,

35,

36,

and 37

are put to her that she finally concedes


not completely,

and

but concedes that her feelings

were conflicted,
10

is how she puts it.

my respectful submission,

And,

in

this witness

continues not to be candid with the court.

And

the pattern of disclosure ought to cause Your


Honour significant concerns with respect to her
credibility and reliability.
15

Exhibits 35,

And also,

36 and 37 go to the heart of

whats being alleged in this case,

Your Honour,

and should be assessed in the context of the


Crowns burden to prove that the thing happened
and that there was no consent.
20

just pull up those exhibits.

And so,

if you

And Im nearing

the end of my portion of submissions.


Thirtyfive,

Your Honour.

This is the exhibit

this is the e-mail sent 13 days post their

date that Friday night in July of 2003.


25

this is where Ms.

And

IDeCoutere describes a scene

in a popular television show and is relating it


to her feelings for Mr.

Ghomeshi.

And the last

paragraph is
I think you are magic,
30

you.
you,

and I would love to see

I am realizing that,

in the note I mailed

I was really asking if you could go to

Crappy Tire to help me pick out an electric


Publication Ban

61.
Submissions of Ms. Robitaille
rake.
And there,

she referring to the previous

paragraph about the TV show.

And that is

Ms.

DeCouteres contemporaneous feelings for

Mr.

Ghomeshi very shortly after she says she

was sexually assaulted.


submission,

And,

in my respectful

that goes to the heart of the

Crowns allegation against my client.


Exhibit 36,
10

Getting to know you is literally changing my


mind in a good way,
to the point

I think.

You challenge me

you challenge me and point me to

stuff that has not been pulled out in a very


long time.
15

sometime,

I can tell you about all of that


and everything about our friendship

so far will make sense


night,

and that makes me want to fuck your

brains out tonight.


And that,
20

You kicked my ass last

Lucy DeCoutere.

Your Honour,

is sent within hours of

the events she claimed happened at


Mr.

Ghomeshis house on Friday the

my respectful submission,
should be assessed.

that goes

4
t
h

And,

in

and that

That piece of evidence

should be assessed in whether the Crown has


25

made out the offence before Your Honour and,


particular,
on it,

non-consent.

Your Honour,

And

in

and while were

youll recall this

witnesss evidence that

that kicked my ass

did not refer to the physical interaction


30

between her and Mr.

Ghomeshi,

but,

in fact,

this cerebral interaction they had had through


their relationship.

That was her description.

Publication Ban

63.
Submissions of Ms. Robitaille
And youll see a lot of that in the letter she
sends him as well.
exhibit,

37.

And the letter is the next


th,
9

Its dated July

2003,

again

very proximate to the allegations before the


5

court.

And it is a pretty full account,

Honour,

of the night before you,

that this witness testified to,

Your

the night that


and there was

some focus in the course of crossexamination


of the
10

the sign off of the letter,

your hands.

I love

But I want to draw your attention

to the preceding paragraph,

if Your Honour can

pull it up.
THE COURT:
MS.
15

July

Got my own copy up here.

ROBITAILLE:
th,
9

2003,

This

this witness,

writes to Mr.

last paragraph,

Okay.
on

Shomeshi,

in the

in relation to the very night

of the assault,
I am sad we didnt spend the night together.
I could have been more open with you than in
20

person rather than with pen and paper.


disclosures in caf tricky.

I find

I love your hands.

Lucy.
That is how she signs off her letter to
Mr.
25

Ghomeshi,

events.
wrote Mr.

and it is a letter describing the

The fact that Ms.

Ms.

Your Honour,

But what is more relevant,

central to your consideration,


30

DeCoutere

Ghomeshi a love letter is relevant.

Just the fact of it alone,


relevant.

is

what is

on the question

of whether or not the Crown has proven non


consent beyond a reasonable doubt is this
witnesss avowed interest,
Publication Ban

sexual interest,

in

64.
Submissions of Ms.
Mr.

Ghomeshi.

Robitaille

Disappointment that they did not

have sex or did not spend the night together is


central to your consideration,
So,
5

Your Honour.

those are really the points I wanted to

highlight from the

the transcripts and the

exhibits before Your Honour.

And Ms.

Henein

has some submissions in relation to the law.


THE COURT:
MS.
10

Okay.

HENEIN:

Thank you.

How does Your Honour want to

proceed in terms of timing?

[Indiscernible]

clearly you want to take a break?

Im in your

hands.
THE COURT:
Now,
15

if were

go straight through.

if were not done by 1,

well

break about then.


MS.

HENEIN:

THE COURT:

SUBMISSIONS OF MS.
20

I was gonna

MS.

Well be done.
Okay.

HENEIN
HENEIN:

book.

So,

I have handed up to you a case

And I just want to go through some

principles that,

in my submission,

are relevant

to your consideration of the evidence youve


heard before you.
25

Some of them have been

touched upon by the Crown.

And youll see that

all the cases that my friend has referred to


are in there and have been sidebarred,
including the definition of sexual assault,
elements of the offence.
30

But there are some

areas that I do want to highlight for you.


I think the starting point is to place this
into context,

and that is starting with

Publication Ban

the

And

65.
Submissions of Ms.

Henein

Lifchus,

if I can ask you to turn that up at

tab 10.

It is well known that the burden is on

the Crown to prove guilt beyond a reasonable


And if I can take you to paragraph 13,

doubt.
5

the Supreme Court of Canada defining what that


means,

but perhaps most importantly,

the reason

that that is the standard of proof in this


country.

At paragraph 13,

The onus resting upon the Crown to prove the


10

guilt of the accused beyond a reasonable doubt


is inextricably linked to the presumption of
innocence.

That jurors clearly understand the

meaning of the term is of fundamental


importance to our criminal justice system.
15

It

is one of the principal safeguards which seeks


to ensure that no innocent person is convicted.
The Marshall, Morin and Milgaard cases serve as
a constant reminder that our system,
its protections for the accused,

20

tragic errors.

with all

can still make

A fair trial must be the goal

of criminal justice.

There cannot be a fair

trial if jurors do not clearly understand the


basic and fundamentally important concept of
the standard of proof that the Crown must meet
25

in order to obtain a conviction.


And,

of course,

that standard of proof applies

equally to this honourable court in considering


the evidence.

I want to make two comments on

the elements of the offence.


30

And one of the

things that my friend did not address is there


is a count before you of overcoming resistance
by choking.

I do want to take you to some law

Publication Ban

66.
Submissions of Ms.

on that,

Henein

because there are elements which,

my respectful submission,

in

are simply not met on

the evidence adduced through the witness,


Ms.
5

DeCoutere.

In order to be guilty of this

offence, which is very specific,

and that is

choking to overcome resistance to commit


another offence,

the accused must choke the

victim to render them


of the court
10

and this is the words

insensible,

incapable of resistance.
that for you,

unconscious or
And,

if I can just take you to tab 6,

the judgment of Hill.

And,

beginning at paragraph 17,


actually quoted.
15

to highlight

in that judgment,
the provision is

But paragraph 18 sets out

what the actus reus and the mens rea is for


that offence.

So,

it requires the accused to

have the specific intent to commit an


indictable offence such as robbery or
aggravated sexual assault.
20

The actus reus or

the external element of the offence occurs when


the accused attempts by any of the above means
to choke the complainant.
Im not gonna
find it

25

And similarly,

take you to it,

it is sidebarred,

but you will

is Tab 2,

Cook.

That also deals with the offence of choking.


And,

in this case,

the evidence of the witness

was that the sequence was kissing,

hand around the neck,

the wall,
30

and

pushing her up against

and then a slap

and another slap.

hands around

And so,

two slaps,

a stop,

the sequence on its

own would lead to the conclusion that the


choking was not used in aid of committing
Publication Ban

67.
Submissions of Ms. Henein
another offence.
that the

So,

there is a distinction

the choking is not the offence

itself in this provision.


commit another offence.
5

Its the choking to


In addition,

this

witness testified that she was not resisting.


And so,

there is no evidence before you that,

even if believed,

on the sequence provided by

this witness that would fall within the


provision that it was used to render the
10

witness insensible,
resistance.

unconscious or incapable of

Its a very specific provision

designed to be utilized in very specific types


of cases.

in my respectful submission, my

So,

friend has failed to meet the requisite


15

elements on that offence, both the mens rea and


the actus reus.

Let me make a few comments

about the offence of sexual assault and what


the Crowns burden is there.

And my friend has

set out for you the requirements.


20

And we have

in our case book Ewanchuk, which is at tab 4,


which sets it out,

and Chase,

at tab 1 of our case book,

which is actually

which have

sidebarred both the mens rea and the actus


reus.
25

Im not gonna

repeat what my friend has

said in respect of what the elements of the


offence are.
my submission,

But one of the aspects that,

in

is important and must be

considered is the obligation of the Crown to


prove absence of consent beyond a reasonable
30

doubt.

And the Supreme Court of Canada has

given specific guidance about how that is to be


assessed.

If I can take you,


Publication Ban

please,

to

68.
Submissions of Ms.

Ewanchuk at tab 4.

Henein

And the two paragraphs that

directly lead or deal with that analysis start


at paragraph 29,

While the complainants

testimony is the only source of direct evidence


5

as to her state of mind


here,

so,

let me just stop

because consent turns on the

complainants state of mind,


Credibility must still be assessed by the
trial judge or jury in light of all of the
10

evidence.

It is open to the accused to claim

that the complainants words and actions before


and during the incident raise a reasonable
doubt against her assertion that she,
mind,
15

in her

did not want the sexual touching to take

place.
And then,

it goes on to say that,

if the trial

judge concludes that there was no consent,


obviously,

that element of the offence has been

established.
20

And so,

the court goes on to say

that the complainants statement at


paragraph 30 that she did not consent is a
matter of credibility to be weighed in light of
all of the evidence,
conduct.

25

including any ambiguous

The question at this stage is purely

one of credibility and whether the totality of


the complainants conduct is consistent with
her claim of nonconsent.

The accuseds

perception of the complainants state of mind

30

is not relevant.

That only arises on honest

mistaken belief.

But the establishment of non

consent must be proven beyond a reasonable


doubt,

and the court has to look at all the


Publication Ban

69.
Submissions of Ms.

Henein

circumstances surrounding it.

Im gonna

back to that in a few moments.


question that,

in this case,

come

There is no

Your Honour will

need to decide whether the complainants are


5

credible when they allege that Mr.


assaulted them.

And that analysis,

Supreme Court has directed,

Ghomeshi
as the

should include the

evidence of contemporaneous and subsequent


contact and communications and the
10

complainants efforts to conceal them.


respectful submission,

In our

the defence submits that

that burden has not been met by the Crown and


that the evidence in this case should raise
very significant concerns,
15

as my friend fairly

put before you with respect both to credibility


and reliability,

and they are two very distinct

issues that must be considered.

Credibility in

general is something that this honourable court


deals with routinely in all cases.
20

there are some things that,


in my respectful submission,
mind.

And so,

as a general rule,
should be kept in

The first is that a witness who simply

repeats the same story over and over does not


or is not necessarily credible or reliable.
25

The mere repetition of a version of events in


and of itself as a matter of law does nothing
to assist the court in assessing credibility.
And,

in a case book that we gave to you before,

there is a case called Stirling from the


30

Supreme Court of Canada.

I just want to leave

you the paragraph that references that is


paragraph 7.

It is impermissible to assume

Publication Ban

70.
Submissions of Ms.

that,

Henein

because a witness has made the same

statement in the past,

he or she is morelikely

to be telling the truth.

A concocted statement

repeated on more than one occasion remains


5

concocted.

Secondly, my friend talked to you a

little bit about the issue of corroboration.


The fact,

for example,

that Ms.

she went to a Play episode,


shes at a Play episode.
10

says

and 10 and behold,

But,

of course,

that

type of corroboration does nothing to assist


this court in assessing the essence of the
allegations.

It would if it was in issue that

she had never gone to a Play episode.

Then,

course, my friend filing it and showing,


15

of

aha,

there is independent proof is corroborative.


But the Supreme Court of Canada,

dealing with

this in another context in a case called Khela

and I apologize.

I dont have that for you

at paragraph 43 talks about confirmatory


20

evidence that must be capable of restoring the


triers faith in relevant aspects of the
witnesss account.
whats at issue

And so,

thats really

has my friend pointed to

things that would support the witnesss


25

credibility in relevant aspects,


aspects that are in issue.
to my friends suggestion,

the

Thirdly,

30

the

contrary

the absence of

detail is not a badge of credibility,


the presence of detail.

nor is

And I think what

emerges from the case law is that the courts


who are experienced in these matters take a
pragmatic and practical approach.
Publication Ban

There is no

71.
Stibmissions of Ms.

Henein

one rule that fits all.

in some cases,

So,

judge may look at the evidence and the content


of it and say the absence of detail here is
irrelevant.
5

It just doesnt play in.

We see

that very often with the evidence of children.


Courts

the Supreme Court of Canada has said

that is not necessarily a factor to be weighed


in credibility.
submission,
10

So,

in my respectful

before my friend in this case,

these facts,

on

to say the absence of detail is

somehow a badge of credibility just simply does


not hold water.
Ms.

These witnesses,

as

Robitaille has submitted to you,

were able

to give rich detail about the dates that they


15

were testifying about.


the

And by dates,

I mean

the date in time that they were

testifying about.
friend.

And,

So,

that does not assist my

finally, my friends submission

that they were unshaken in the core allegation


20

is of no assistance because,

of course,

unless

a witness gets up and recants on the stand and


says You know,

when I said it,

simply not true,


TV.
25

But,

courts,

thats just

well, maybe that happens on

in 24 years practising in these

that is a rare event.

theyre unshaken
maintained,

in other words,

as they will,

understandably,

And so,

saying

that they

of course,

their position doesnt assist

this court in assessing the credibility and


30

reliability of their
where does one look?

of these witnesses.
Well,

the extraordinary

fact about this case is that all three


Publication Ban

So,

72.
Submissions of Ms.

Henein

complainants withheld information from the


police and from the Crown and,
submission, most importantly,
the course of their testimony.
5

do it because,
cases,

in my
from the court in
And they didnt

as we have heard in many, many

and judges routinely accept these sorts

of explanations,

I forgot or I wasnt really

focusing on that irrelevant aspect.


case,
10

it was disclosed at the

trial,

and here is the heart,

submission.

th
11

In this

hour before

in my respectful

Only when there was a concern that

they would be contradicted by objective

15

evidence,

because,

apparent,

the truth was not going to be told.

until that moment became

And that is more than deeply troubling,

that

the truth or portions of it are to emerge only


when these complainants knew that they may be
confronted with objective evidence,
words.
20

their own

And were it not discoverable

independently,

then we were not gonna

truth on February

d
2

or

4
t
h

or at all.

hear the
You

heard a number of explanations for the ongoing


cormnunication with Mr.

Ghomeshi from bait

baiting to flattening the negative.


25

explanations,

Mr.

Ms.

These

in our respectful submission,

not worthy of belief.


clear

are

And I want to be very

Robitaille touched upon this as did

Callaghan

as to the legal relevance,

because this honourable court is concerned with


30

legal relevance of the evidence in this


particular case.

And,

of course,

relevance,

Your Honour knows and as a matter of law,


Publication Ban

as

is a

73.
Submissions of Ms.

case specific thing,

Henein

relevance of evidence

derived from the issues that are in play at a


case.

So,

this case,
5

there are no general rules.

It is,

the relevance of the conduct itself,

the relevance of the lie under oath.


this is not news
circumstances,

that,

and 2,

We know

in certain

women will continue to interact

with people who have abused them.


Lavallee.

in

the relevance of the ongoing

communication floats from two things.


1,

10

And,

That is

That is the Supreme Court of Canada

addressing this very issue and the need for


expert evidence to address this issue.
not what is in play in this case.
15

That is

Ms.

was the one who told the police As evidence of


my assault,

to corroborate what occurred to me,

this is what I did.

I am telling you this is

how I reacted in response to the trauma.


didnt communicate with.
20

That is not the same

as putting to a witness Whyd you continue to


communicate with him.

She puts it up as

evidence corroborating her,

the type of

evidence that my friend says you should look


for,
25

I was so traumatized that,

this traumatic incident,


interact with him again.

in response to

I deliberately did not


It is not true.

We

know that from the evidence that is adduced


before you.

The same is true of Ms.

DeCoutere.

She claimed that her reaction was not to


30

communicate with him,

that she maintained

distant but cordial relations because they were


in the same business.

That was untrue.

Publication Ban

That

74
Submissions of Ms.

Henein

is the relevance of it.


same.

Ms.

was the

She offered to the police evidence that

she was so frightened of him she would only be


in public.
5

That was evidence of her reaction

to being in a dangerous assaultive situation.


That is what she explained.
So,

the relevance here is not how do we expect

people to behave.
witness,
10

That is not true.

The relevance is you,

said vThis is what I did,

evidence shows that was a lie.

and the

The second

thing is the relevance of this evidence,


is the lie under oath itself.

as a

which

It is perhaps

the willingness to lie about the conduct that


is more troubling than the conduct itself.
15

The

oath or promise to tell the truth means


something.

And,

in cases where a conviction

for a crime requires this honourable court to


rely on the words of a witness when there is
nothing else,
20

then their disregard for the

obligation to tell the truth is meaningful.


And,

as my friend has said,

their explanation

for doing so has to be carefully considered.


Courts have relied on recanting witnesses.
This is known.
25

But the court must look at why

and the explanation that the witness has


provided to you.

Now,

not require a lawyer,

abiding by the oath does


notwithstanding that the

complainants had one in this case,

and it

doesnt require a sophisticated understanding


30

of the criminal justice system.

The oath is

spelled out in real simple language:


truth,

the whole truth,


Publication Ban

tell the

and nothing but the

75.
Submissions of Ms.

truth.

Henein

this has nothing to do about not

So,

knowing about the intricacies of the legal


system when you lie under oath.

And it has

nothing to do with that when you step into a


5

courtroom,

take the Bible in your hand,

before the judge.

The truth was not told in

examinationin-chief in this case.


Ms.

and lie

Robitaille has said,

And,

as

perhaps most

significant for this honourable court when


10

analyzing and looking,

as you will,

explanations provided,

is how that truth

emerged before you.

Because,

at the

to rely on the

word of a person who will decide for themselves


what is and is not relevant, who will only tell
15

you half-truths and who will withhold


information,

that is a witness that cannot be

relied beyond a reasonable doubt.

This

courtroom should not be a game of chicken.

Our

adversary system is structured around a


20

conviction and significant consequences,

and it

is based on the fact that the truth will


emerge.

So,

on that,

I wanted to give you some

law on the importance of prior inconsistent


statements and how to look at those
25

explanations or the types of explanations you


are presented with in this honourable court.
And,

if I could take you to tab 7,

which is a

judgment of the Supreme Court of Canada called


Howard,
30

and these are the comments of

Justice LHeureuxDub at paragraph 46.


at paragraph 46,

And,

Justice LHeureux-Dub says

Wigmore has noted that cross-examination


Publication Ban

76.
Submissions of Ms.
sorry,

Your Honour.

THE COURT:

GOt it.

Henein

Do you have that?


Yeah.

MS.

HENEIN:

Is

beyond any doubt the greatest legal engine

Thank you.

ever invented for the discovery of truth

One

cannot over-emphasize the commitment of courts


of justice to the ascertainment of the truth.
The just determination of guilt or innocence is
a fundamental underpinning of the
10

administration of criminal justice.

The ends

of the criminal process would be defeated if


trials were allowed to proceed on assumptions
divorced from reality.

If a careless disregard

for the truth prevailed in the courtrooms,


15

public trust in the judicial function,

the

the law

and the administration of justice would


disappear.

Though the law of criminal evidence

often excludes relevant evidence to preserve


the integrity of the judicial process,
20

it is

difficult to accept that courts should ever


willingly proceed on the basis of untrue
facts.
The words of one of the most significant
feminist jurists in this country.

25

That is why

the Supreme Court of Canada has said that the


court must look at what explanations are given
for the inconsistencies.

The credibility of a

witness does not presumptively fail because


theyve been inconsistent,
30

but you have to look

at what it is theyve been consistent about and


what their explanation is.
end,

And so,

to that

the Ontario Court of Appeal in the case of


Publication Ban

77.
Submissions of Ms.

M.G.

found at

tab 12,

Henein

your indulgence,

at paragraph 23,

please

court says this:

Probably the most valuable means of assessing


the credibility of a crucial witness is to
5

examine the consistency between what the


witness said in the witness box and what the
witness has said on other occasions,
oath or not.

whether on

Inconsistencies on minor matters

or matters of detail are normal and are to be


10

expected.

They do not generally affect the

credibility of the witness.

This is

particularly true in cases of young persons.


But where the inconsistency involves a material
matter about which an honest witness is
15

unlikely to be mistaken,

the inconsistency can

demonstrate a carelessness with the truth.

The

trier of fact is then placed in the dilemma of


trying to decide whether or not it can rely
upon the testimony of a witness who has
20

demonstrated carelessness with the truth.


And so,

the inconsistencies that youve heard

are relevant.

As one writer wrote in a novel,

the truth is often found in between the lies.


And,
25

in my respectful submission,

this case.

In our courts,

that is so in

witnesses are not

presumed to be truthful because of who they


are.

A witness is not believed just because he

or she is a police officer or an expert,


weve
30

and

weve been reminded of those lessons

over and over again.


its own merits,
its consistent,

Testimony is judged on

whether its logical,

whether

in accord with this courts

Publication Ban

78.
Submissions of Ms.

Henein

common sense and human experience,

and the

known facts that have been adduced before you.


Courts dont play favourites with one kind of a
witness or another.
5

No witness enjoys a

presumption of truthfulness nor should any


witness be subjected to a presumption of
untruthfulness.

There are legal systems that

do believe that someones truthfulness depends


on who they are,
10

still exist.

not what they say,

And,

and they

in my respectful submission,

the one thing that we know is that those types


of legal systems result in hurting the very
people you think they would be designed to
protect.
15

So,

it does no favours to anyone,

my respectful submission,

in

to ask this

honourable court to set aside ordinary scrutiny


or common sense in assessing the evidence that
you have heard before you.

My friend has

talked a little bit about what is and is not


20

relevant,

for example,

behaviour,

the law on post-assault

on delayed disclosure.

is very well established.

All of that

It is not new,

it is not emerging for the first time.

25

and

But

those strides did not commence on February

1
s
t

or those issues to be raised.

our

As we know,

courts have wrestled with this since Seaboyer


and Ewanchuk and Mills and OConnor,
Criminal Code,
been raised.
30

276 and 278,


And people

profoundly committed,

and the

things that have


women who have been

such as

Justice LHeureux-Dub,

such as Justice

Chief

Justice Mcachlin have thought about this in a


Publication Ban

79.
Submissions of Ms. Henein
thoughtful way.

But,

before you today,

as my friend conceded

none of those issifes are at

play in the case before you.


submitted,
5

and I agree,

My friend has

that the assessment of

credibility is the core function of this


honourable court,

and we dont delegate this to

self-professed experts.

And we have in there

Ive put in the case book Marquard,

D.D.,

dealing with delayed disclosure and when it is


10

and is not admissible,

and it is not relevant

to the case before you.

The Crown did not seek

to call any such evidence because it is


inadmissible in this case.
Ms.
15

The theory which

DeCoutere found great comfort in in

explaining her conduct simply does not hold


water here.

The way that people who are

traumatized in long term relationships has


nothing to do with her and her dishonesty under
oath.
20

Neither Ms.

nor Ms.

nor Ms.

DeCoutere

have anything to do with the

sorts of things that my friend has raised,

with

the sorts of issues that the courts are


familiar with,

and are profoundly cognizant of.

There is no prior existing relationship here.


25

There arent even friendships that existed here


before these incidents.

All three assaults

were allegedly things that occurred on the very


first date.
relationship,
30

There was no ongoing romantic


no financial dependence,

imbalance that existed in this case.

no power
People

respond to life experiences in a number of


different ways, but lying repeatedly to the
Publication Ban

80.
Submissions of Ms.

police,

Henein

to the prosecutors,

and under oath in

this cOurt is simply not one of them.

There is

not an expert that will come and testify that


perjury is indicative of trauma.
5

Now,

you may

forget an e-mail or a phone call or a letter.


That is understandable.
happened here.

Ms.

her feelings for Mr.

But that is not what

DeCoutere did not forget


Ghomeshi.

Ms.

did not forget that she baited Mr.


wanted him to contact her.

Ghomeshi and

Ms.

did not

forget that she invited him back to her home


and was alone in private with him.

So,

this

isnt about the right way or the wrong way to


behave.
15

If,

in any of these instances,

the

complainants had told the police the truth and


testified forthrightly about their conduct,
then the behaviour could have been analyzed.
And it may have been odd or it may have been
explicable, but thats not the case before you

20

and thats not the evidence before you.


the witness cannot do,
submission,
and then,

in my respectful

is lie and conceal their conduct

when caught out,

say Oh,

just how victims of abuse behave.


25

What

gee.

Thats

That type

of refuge is not one that should be granted in


the case before you and certainly not to these
witnesses.
outset,

Most troubling,

as we said at the

is the decision by these witnesses to

reserve for themselves the authority to


30

determine what is and is not relevant and to


decide when and if ever it will be disclosed,
and only when confronted with the truth and
Publication Ban

81.
Submissions of Ms.

with their own words.

Renein

The conduct here,

collusion between Ms.


is troubling,

and Ms.

the

DeCoutere

and the Crown was correct as a

matter of law to abandon the similar act


5

application.
admissible,

It would not have been


and the Supreme Court of Canada is

replete with cases,


Handy,

not the least of which is

which is submitted to you,

which

comments on the importance of collusion and its


10

devastating effect on the admissibility

its

determinative effect on the admissibility of


this type of evidence.

This was not some

evidence of collusion or cases,


Supreme Court of Canada,
15

where there has been a

single meeting with a lawyer.


that is extensive.
Your Honour,

as in the

This is evidence

I think Id like to finish,

where you actually began at the

start of this trial,

in your opening remarks.

You quite properly focused the participants and


20

yourself on the task presented by the charges


here to determine whether the allegations that
had been made in this case could be proven
beyond a reasonable doubt by the Crown.

Now,

criminal trials do test evidence in a way that


25

other institutions may not.

But I come back to

Wigmores observation that the greatest legal


engine ever invented for the discovery of truth
is a trial and the way that it is conducted.
Thats why we have trials,
30

because nothing is

evidence until its been tested in this way,


and an allegation is not true until it has been
tested this way.

It is not proven by Tweets

Publication Ban

82.
Submissions of Ms.

and press releases.

Henein

And thats not something

particular to charges like these in this case.


Its how every criminal trial in this country
runs.
5

Witnesses testify.

tested.

Sometimes,

it is not.
judge.
it.

it is believed.

Sometimes,

But it is done by an impartial

And there is simply no other way to do

Now,

obviously,

Honour noted,
10

Their evidence is

this case has,

as Your

attracted attention and a great

deal of emotion as its proceeded.

But I guess

Id like to end with the comments of the


Supreme Court of Canada in the case of
Curragh because it is not new.

And the court

said this:
15

Hgh profile trials,

by their nature,

strong public emotions.

attract

In our society,

the

Crown is charged with the duty to ensure that


every accused person is treated with fairness.
It is especially in high profile cases,
20

the justice system will be on display,

where
that

counsel must do their utmost to ensure that any


resultant convictions are based on facts and
not on emotions.
Youve heard the evidence in this case.
25

And,

for reasons that we have submitted to you,

it

is our submission that the evidence in this


courtroom falls so far short of proving
anything beyond a reasonable doubt.

It is so

riddled with inconsistencies and


30

improbabilities and proven lies under oath that


it cannot be said to prove anything.
respectful submission that Mr.
Publication Ban

Its our

Ghomeshi is not

83.
Submissions in Reply of Mr. Cailaghan
guilty and that he is entitled to an acquittal
on all counts.

Subject to your questions,

those are my submissions.


THE COURT:

Okay.

Thank you.

Callaghan?

5
SUBMISSIONS IN REPLY OF MR.
MR.

CALLAGHAN

CALLAGHAN:

Obviously,

I do have some brief reply.

Your Honour,

I am aware that its

not my chance to repeat my submissions,


10

but

there are a few issues Id like to raise as a


result of some submissions made.
Ms.

Robitaille,

in her submissions, mentioned

the Crown had failed to prove non-consent for


the car incident.
15

And I would ask Your Honour

to clearly keep in mind the


definition of consent.
question,

the actual

Not being asked the

not having a discussion,

not having a

response is not tantamount to obtaining


consent.
20

In relation to the submission that

Ms.

Robitaille made about the e-mail that

Ms.

DeCoutere sent the day after the alleged

allegation

the allegations or in relation to

the love letter,

I think its very important,

and I think the court has to caution itself


25

that consent cannot be informed by after the


fact conduct.

Ms.

DeCoutere was clear and

unequivocal that she didnt consent to being


choked or slapped.
couldnt have,
30

She could have

she

because she wasnt asked in the

the circumstance,

according to her evidence.

Theres no evidence that Mr.


her,

Ghomesh asked

and the only evidence of consent or non


Publication Ban

84.
Submissions in Reply of Mr.

Callaghan

consent you have is from Ms.


just say that,

obviously,

DeCoutere.

So,

those items are

something the court consider as part of the


constellation of considerations and
5

pieces of evidence.

and

But I think the court has

to caution itself that sort of after the fact


pieces of evidence dont inherently mean that
consent was granted or obtained.
to Ms.
10

In relation

Dunsworth and the evidence of

Dunsworth, my friend submitted that it

Ms.

should be assessed in light of her


communication with Ms.

DeCoutere and it shows

evidence of partiality and collusion.

That is

obviously Your Honours determination at the


15

end of the day when you look at all of that


information.

But I would suggest to you its

more consistent with a friend showing support.


But what it clearly does not demonstrate,
submission,
20

is any discussion of the

allegations or
Ms.

in my

or collusion.

And I think

Dunsworths evidence is really important

for the two purposes.


recent fabrication,

It

it rebuts the

affects the role of

motivation in the credibility assessment.


25

I think that also,

if,

accepts that evidence,

in fact,

But

Your Honour

it can also affect your

assessment of the collusion piece in relation


to Ms.

that was put to her.

Honour is of the view that it


30

or
Ms.

If Your

it buttresses

or strengthens the credibility of

DeCoutere in fact that she had recounted

that same story

same event

Publication Ban

to someone else,

85.
Submissions in Reply of Mr. Callaghan
to allege that somehow Ms.
Ms.

and

DeCoiltere were colluding or trying to work

together in terms of fabricating their evidence


is definitely weakened if you accept the fact
5

that she made the

the statement to

Ms Dunsworth previously.

And I think it is

relevant to the credibility assessment and


Ms.

Brief indulgence,

There was a lot of


10

Your Honour.

of e-mails that were filed

as exhibits in this proceeding,

and the only

caution I have for Your Honour is to carefully


consider what

what is proof in those e-mals.

I think theres an example where there were


some e-mails put to Ms.
15

And the fact

that the e-mail says I watched your show,


think Ms.

clearly gave a response No.

I wrote that but I didnt mean that.


think its really clear in all

Well,

in a number of

the emails that were entered as exhibits,


20

unless they were specifically adopted in terms


of the content,

I think Your Honour has to have

some caution in terms of the weight you put on


those particular pieces of evidence.
Ms. Robitaille also made some reference to
25

Ms.

s having continually changed some

significant events in relation to the second


incident or the incident at Mr.
house.

But I think

Id urge Your Honour to

carefully look at her evidence,


30

submit Ms.

Ghomeshis

and I would

indicated it was a blur

whether he pulled her hair down or pushed her


hair down.

The Crown would submit that

Publication Ban

86.
Submissions in Reply of Mr.

pulling,

pushing,

Callaghan

she was always consistent.

She ended up on the ground,

and she was struck

on the head a number of times Mr.


So,
5

Chomeshi.

the Crown would urge Your Honour to

carefully consider the type of alleged


inconsistency and the weight that you put on
that,

if any.

indulgence.

I could just have a brief


Think those are all my

submissions.
10

THE COURT:

All right.

Well,

it wont come as

any surprise to counsel that Im going to


reserve judgment on this matter.
remind me

15

the trial coordinator given March

the

th
24

MR.

CALLAGHAN:

as the return date in this courtroom?


That is correct.

this courtroom,
doing.

And I think

and I

And it is in

I believe it took some

But I think everybodys available at

that time.
THE COURT:
20

March the
MR.

Right.
th
24

CALLAGHAN:

MATTER

So,

we will reconvene on

for judgment,

then.

Thank Your Honour.

ADJOURNED

25

Publication Ban