In the face of those who make unsubstantiated claims that the Judge sent out the wrong message, applying false stereotypes about sexual assault, that this was a “rape” case, that the complainants are “survivors” and that the criminal justice system has to change, going to the source and actually reading the judgment reveals none of this to be the case. Rather the trial is simply a search for the truth. As I doubt many will take the time to read the entire judgment I reproduce here some excerpts that are significant and will give an honest picture.
THE COMPLAINT OF L.R.
[44] L.R.’s evidence in-chief seemed rational and balanced. Under cross-examination, the value of her evidence suffered irreparable damage. Defence counsel’s questioning revealed inconsistencies, and incongruous and deceptive conduct. L.R. has been exposed as a witness willing to withhold relevant information from the police, from the Crown and from the Court. It is clear that she deliberately breached her oath to tell the truth. Her value as a reliable witness is diminished accordingly.
THE COMPLAINT OF LUCY DECOUTERE
[65] When a witness is comfortable with giving differing versions of the same event, it suggests a degree of carelessness with the truth that diminishes the general reliability of the witness.
[67] It became clear at trial that Ms. DeCoutere very deliberately chose not to be completely honest with the police. Her statement to the police was what initiated these proceedings. This statement was subject to a formal caution concerning the potential criminal consequences of making a false statement. It was given under oath, an oath to tell the truth, the whole truth and nothing but the truth, not a selective version of the truth. Despite this formal caution and oath, Ms. DeCoutere proceeded to consciously suppress relevant and material information. This reflects very negatively on her general reliability and credibility as a witness. It indicates a failure to take the oath seriously and a wilful carelessness with the truth.
[81] I find as a fact that Ms. DeCoutere attempted to mislead the Court about her continued relationship with Mr. Ghomeshi. It was only during cross-examination that her expressed interest in a continuing close relationship was revealed.
[87] In the framework of a credibility analysis in a criminal trial, Ms. DeCoutere’s attempt to hide this information evidences a manipulative course of conduct. This raises additional and mounting concerns regarding her reliability as a witness.
[94] Let me emphasize strongly, it is the suppression of evidence and the deceptions maintained under oath that drive my concerns with the reliability of this witness, not necessarily her undetermined motivations for doing so. It is difficult to have trust in a witness who engages in the selective withholding relevant information.
THE COMPLAINT OF S.D.
[106] Some lack of precision is to be expected in any report of conduct from over a decade earlier. However, it is reasonable to expect that a true account of significant events will not vary too dramatically from time to time in the telling. The standard of proof in a criminal case requires sufficient clarity in the evidence to allow a confident acceptance of the essential facts. ….
[113] At trial, a very different truth was revealed. After meeting with Mr. Ghomeshi at a bar, in public, she took him back to her home and, to use her words, they “messed around”. She gave him a “hand job”. He slept there for a while then went home. This of course was dramatically contrary to her earlier statement that she “tried to stay in public with him” and keep her distance. S.D. acknowledged that her earlier comments were a deliberate lie and an intentional misrepresentation of her brief relationship with Mr. Ghomeshi.
[114] S.D.’s decision to supress this information until the last minute, prior to trial, greatly undermines the Court’s confidence in her evidence. In assessing the credibility of a witness, the active suppression of the truth will be as damaging to their reliability as a direct lie under oath.
[118] I accept Ms. Henein’s characterization of this behaviour. S.D. was clearly “playing chicken” with the justice system. She was prepared to tell half the truth for as long as she thought she might get away with it. Clearly, S.D. was following the proceedings more closely than she cared to admit and she knew that she was about to run head first into the whole truth.
[119] S.D offered an excuse for hiding this information. She said that this was her “first kick at the can”, and that she did not know how “to navigate” this sort of proceeding. “Navigating” this sort of proceeding is really quite simple: tell the truth, the whole truth and nothing but the truth.
CONCLUSIONS
[132] At trial, each complainant recounted their experience with Mr. Ghomeshi and was then subjected to extensive and revealing cross-examination. The cross-examination dramatically demonstrated that each complainant was less than full, frank and forthcoming in the information they provided to the media, to the police, to Crown counsel and to this Court.
[135] As I have stated more than once, the courts must be very cautious in assessing the evidence of complainants in sexual assault and abuse cases. Courts must guard against applying false stereotypes concerning the expected conduct of complainants. I have a firm understanding that the reasonableness of reactive human behaviour in the dynamics of a relationship can be variable and unpredictable. However, the twists and turns of the complainants’ evidence in this trial, illustrate the need to be vigilant in avoiding the equally dangerous false assumption that sexual assault complainants are always truthful. Each individual and each unique factual scenario must be assessed according to their own particular circumstances.
[137] Each complainant was confronted with a volume of evidence that was contrary to their prior sworn statements and their evidence in-chief. Each complainant demonstrated, to some degree, a willingness to ignore their oath to tell the truth on more than one occasion. It is this aspect of their evidence that is most troubling to the Court.
[138] The success of this prosecution depended entirely on the Court being able to accept each complainant as a sincere, honest and accurate witness. Each complainant was revealed at trial to be lacking in these important attributes. The evidence of each complainant suffered not just from inconsistencies and questionable behaviour, but was tainted by outright deception.
[139] The harsh reality is that once a witness has been shown to be deceptive and manipulative in giving their evidence, that witness can no longer expect the Court to consider them to be a trusted source of the truth. I am forced to conclude that it is impossible for the Court to have sufficient faith in the reliability or sincerity of these complainants. Put simply, the volume of serious deficiencies in the evidence leaves the Court with a reasonable doubt.
[140] My conclusion that the evidence in this case raises a reasonable doubt is not the same as deciding in any positive way that these events never happened. At the end of this trial, a reasonable doubt exists because it is impossible to determine, with any acceptable degree of certainty or comfort, what is true and what is false. The standard of proof in a criminal case requires sufficient clarity in the evidence to allow a confident acceptance of the essential facts. In these proceedings the bedrock foundation of the Crown’s case is tainted and incapable of supporting any clear determination of the truth.
Source: CanLII – 2016 ONCJ 155 (CanLII)
