Jian Ghomeshi Sex Assault Trial Closing Submissions

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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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

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.
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.
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.
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

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.
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.
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.
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.
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.
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.
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.
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
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.

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.
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.
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.
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.
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,
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.
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,
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.
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.
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.
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.
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,
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.
wanna have that drink sometime.

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,
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.
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.
she took him home,
interaction,
her bed.
and there was a sexual
and he spent some time sleeping in
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

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.
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.
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

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.
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.
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.
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.
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
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.
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,
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.

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,

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
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
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,
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
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Information No.

ONTARIO COURT OF JUSTICE

HER MAJESTY THE QUEEN

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION

Counsel for the Crown

ONTARIO COURT OF JUSTICE

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION

SUBMISSIONS IN REPLY OF MR.

Ordering Party Notified:

I think my friend had some

keeping matters to deal

clips that were played to one of the witnesses

we just neglected to file.

Theres a copy for Your Honour.

There were just three

police statement and,

is what they have

just excerpts of the

noticed that I had neglected to.

have them marked.

And the only other thing is,

before my friend starts,

Ive handed up a case

The reason is I think there may

be some cases my friend refers to.

.assistance and yours,

there for you.

application that was bought

Crown or a notice of application.

indicate the Crown,

case as we move forward,

evidence in conjunction with the appropriate

And I can indicate the Crown

wont be proceeding with the application that

was brought at the outset.

asked me how you rely on each of the

ask you about

committed to protecting the personal integrity,

Having control over who touches

ones body and how lies at the core of human

The inclusion of assault

and sexual assault in the Code expresses

of the person from any non-consensual contact

The common law has

recognized for centuries that the individuals

thats what this case is all about.

the observation of the Supreme Court of

where it said one of

the key rights in our society is the

unconsented invasions on his

or her physical security or dignity,

a central purpose of the criminal law to

to outline some of the sexual assault case law

Youre an experienced trial

I know that youre familiar with these

But I do think its worth stating some

of the principles that really underpin this

The Supreme Court of Canada

outlined the test for sexual assault in R.

I think thats the really the main

that outlines the test.

A sexual assault is an assault within any one

of the Criminal Code,

is committed in circumstances of a sexual