Information No.

5

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

5

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

I

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.

They’ve been

There’s a copy for Your Honour.

Exhibits 47,

48,

been marked.
15

There were just three

and 49 is

They are

police statement and,

It’s

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 friend’s 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.

I’ve handed up a case

The reason is I think there may

be some cases my friend refers to.

So,

just

for my friend’s...
THE COURT:
30

MS.

HENEIN:

Appreciate it.
..

.assistance and yours,

there for you.
THE COURT:

Thank you.

Publication Ban

they’re

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

won’t 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

one’s body and how lies at the core of human
dignity and autonomy.

The inclusion of assault

and sexual assault in the Code expresses
society’s 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 individual’s
right to physical integrity is a fundamental
fundamental principle.
30

And,

Your Honour,

that’s 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
individual’s 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,

I

I’m going

to outline some of the sexual assault case law
that’s applicable.
10

You’re an experienced trial

judge.

I know that you’re familiar with these

cases.

But I do think it’s 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 that’s 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

accused’s 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 L’Heureux-Dubé,

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

5

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 Crown’s 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

Ghomeshi’s

-

while at Mr.

Ghomeshi’s

residence in the midst of kissing.

The

evidence clearly demonstrates a sexual context
of the interactions.

Ms.

Publication Ban

described

6.
Submissions of Mr. Callaghan
that,

while kissing Mr.

bench,

he squeezed her neck and covered her

mouth,

causing her to have difficulty

breathing.
5

Ghomeshi on a park

The surrounding circumstances of

their romantic interactions highlight the
sexual content.
Honour,

What I’m 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

Ghomeshi’s friends.

street for a drink.

Mr.

They went across the
Ghomeshi was being

sweet and humble and charming.
the pub, Mr.

When

When they left

Ghomeshi offered to drive her to

her car, which was parked in a nearby parking
lot.
25

Mr.

When they got to the car,

Ghomeshi drove over to where Ms.

was parked,
minutes.

they chatted in the car for a few

They were sitting facing each other

while seated in the front seats.
asked Ms.
30

and

Mr.

Ghomeshi

to undo a couple of buttons

on her shirt.

She refused.

flirting during this time.
consensually kissing,

They were both
They started

and Mr.

Publication Ban

Ghomeshi then

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

really hard.

Ms.

head back and held if for 2 to 3

seconds.
5

He pulled

Mr.

Ghomeshi’s hand was around her

neck during the kissing.

He didn’t 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 wasn’t 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 can’t handle,
20

something that

she would have to sort out or they would have
to sort out together.

Mr.

Ghomeshi kissed her

again goodbye and they drove off.

She kissed

him because he had switched back to the nice
guy,
25

and she questioned whether he actually

meant to hurt her in the previous interaction.
Ms.

went to another taping.

him again,

because he was nice,

and he had

switched back to that nice person.
was uneventful.
30

Ms.

again a third time.

She saw

This taping

saw Mr. Ghomeshi
She went the first week of

January to another taping of the show Play.
This time,

her friend,

Publication Ban

,

went

8.
Submissions of Mr. Callaghan
with her.

Entered as an exhibit was a

video clip of Ms.

5

We heard from

she drove to Ms.

home,

and they took the subway down to get down to
the CBC building.

They’d 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 wasn’t 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 she’d

or “You should go.

Publication Ban

and

I’ll call

9.
Submissions of Mr. Callaghan
you a cab”.

There was a change in his

demeanour.

He went from being a really nice

guy to this rage and

and dark.

-

threw her out like trash.
5

scared and in tears,
what had happened.

He three

Ms.

was

traumatized what had

I’m 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 e—mails 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.

Ghomeshi’s 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 didn’t leave a

There was no build-up.

He used enough

pressure that she couldn’t 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.
didn’t want to anger him.
20

seem rude.

Ms.

DeCoutere

She didn’t want to

She just didn’t 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

Ghomeshi’s

I’ll now turn to the evidence of
.

Ms.

for many years,
30

and she

disappointing,

seeming not cosmopolitan in Mr.
eyes.

to

She indicated she’s a people

was concerned about angering,

Ms.

After

knew of Mr.
as her

the music industry.

Ghomeshi

was involved in

She didn’t really know him

other than to say “Hello”, but she had known
him from the time when he was in the band Moxy
Publication Ban

11.
Submissions of Mr. Callaghan
Fruvos.

In 2003, Ms.

moved to Toronto.

She was involved as a dancer in the
Festival held in
that,
5

the

Park.

from the poster,

th
15

to

th
20

she met Mr.

And we know

that that was from July

of 2003.

One of the evenings,

Ghomeshi after the show.

They had

been introduced previously, but they weren’t
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 didn’t 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 wasn’t 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 post—assault.

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 complainant’s 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 wouldn’t be believed.
30

was concerned
Ms.

didn’t think she could go to the police with
her allegations.
serious enough.

She didn’t think they were
It wasn’t 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

didn’t 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 wasn’t 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

wasn’t an isolated incident.

I’d 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 post—assault behaviour
should not necessarily be used in the
assessment of a complainant’s 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.

Callagha’n

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.

V

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

Ghomeshi’s home.

She was in

She couldn’t understand why

Mr. Ghomeshi assaulted her.

It was without

warning and out of context.

She left his house

wondering what she had done to elicit such a
violent reaction from him,
thought had been so kind,
Time passes,
20

this man who she
charming,

and Ms.

and nice.

was still left

wondering about the interaction she had with
Mr.

Ghomeshi.

and funny,

He was so charming and wonderful

but there was this shocking and

unexpected switch in his behaviour that left
her wondering what had happened those two
25

fateful nights in 2002 and 2003.

So,

she wrote

him and tried unsuccessfully to elicit an
explanation.

And then she sent him a picture

using the only commodity that she thought she
had to attract an explanation
30

her body.

This

was all in an effort to understand the
incidents of violence that she had experienced
at the hands of Mr.

Ghomeshi.

Publication Ban

Turning to

17.
Submissions of Mr. Callaghan
Ms.

DeCoutere,

her reaction to being choked and

assaulted by Mr.

Ghomeshi was very different

from that of Ms.

She testified in

‘s.

detail how she went to great lengths to
5

normalize the situation.

She candidly admitted

that her behaviour towards Mr.

Ghomeshi in the

wake of a sexual assault may appear at odds
with what one might expect but that,
viewed in this context,
10

bizarre.

But again,

when

it may even seem

the characterization of

the evidence as unexpected or bizarre alone is
not enough for Your Honour to reject the
evidence of Ms.

DeCoutere.

Ms.

DeCoutere

testified that the choking and assault came out
15

of nowhere.

She didn’t understand what

happened to her.

She couldn’t process it.

couldn’t 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.

DeCoutere’s 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
didn’t 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 didn’t 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

I’m 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 complainant’s evidence in every
respect.

The evidence should,

however, be

capable of restoring the trier’s faith in the
Publication Ban

19.
Submissions of Mr. Callaghan
complainant’s account”.
So,

Your Honour

having dealt with the issues

of why there’s 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
Honour’s 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 witness’s testimony refers to
factors other than honesty that can influence
the accuracy of a witness’s 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 I’m 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 complainant’s
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 complainant’s 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 witness’s evidence.

Accordingly,

a trier of fact is entitled to

accept parts of a witness’s 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 self—interest.

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
complainant’s 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,

she’s on video that’s been

filed as an exhibit in these proceedings.

It’s

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,

there’s 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 Honour’s assessment of
reliability.

There’s a factual vacuum.

Looking at the concern about the abundance of
30

detail in cases involving distant events which
may or may not necessarily imply an accurate
memory,

it was clear that there was not an
Publication Ban

22.
Submissions of Mr. Callaghan
abundance of detail that would make the
cOmplainant’s 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,

there’ll be lapses in memory.

When looking at

the absence of evidence available to support
the complainant’s testimony in key areas,

there

was no absence of evidence available to support
the complainant’s 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 complainant’s evidence would be if
a third party was there.
20

And I’m 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

it’s

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 witness’s
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

friend’s anticipated submission,

it is the

Crown’s 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,

I’m not attempting to shift the

Publication Ban

24.
Submissions of Mr.
burden.

But

credibility,

but,

Callaghan

in assessing Ms.

‘s

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

there’s been

no evidence called by the defence to contradict
these assertions and,

therefore,

these should

not be relied on in assessing the witness’s
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 e—mail communication
25

that Ms.

sent to Mr.

Ghomeshi despite

indicating that she didn’t want to have
communication with him.

However,

when

confronted with these communications,
Ms.
30

provided an explanation that is

open to Your Honour to accept.

She was

confused by what happened between her and
Mr.

Ghomeshi,

and she needed the closure of an

Publication Ban

25.
Submissions of Mr. Callaghan
explanation.

We may not have all engaged in

the same type of behaviour that Ms.
did,

but that alone should not be enough to

reject this explanation.
5

I urge you to recall

what I submitted to the court earlier about
relying on stereotypical assumptions of how
victims of sexual violence should react and the
role of these myths in assessing credibility
and reliability.

10

Ms.

What is clear is that

did not waver in her evidence

that, without her consent, Mr.

Ghomeshi

violently pulled her hair while in his car and
again,

at his home, pulled her hair again and

repeatedly punched her.
15

context of romantic date.

Both occurred in the
There was nothing

improbable or implausible about the recounting
of these events.

Even if Your Honour chooses

to reject some of Ms.

evidence,

it

is open to accept this portion of her evidence
20

given that she so steadfastly stuck to it and
it is essentially unchallenged in cross—
examination.
Ms.

DeCoutere.

I’m 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 it’s 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 e—mail communications.

Ms.

DeCoutere

attended Toronto the weekend of July the
th1,
6

2003 and spent time with Mr.
Publication Ban

4
t
h

Ghomeshi

to

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

DeCoutere and

Ghomeshi engaged in a romantiã

relationship.
assault,
5

Ms.

Ms.

Subsequent to the alleged sexual
DeCoutere and Mr.

Chomeshi would

see each other at various industry—related
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 I’d indicated before,

the

absence of evidence available to support the
complainant’s testimony,

I’m going to suggest

to you it’s not surprising in a case of this
nature that you wouldn’t find that type of
evidence and,
20

with the passage of time,

Your

Honour obviously should approach carefully the
witness’s 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.

DeCoutere’s position was that the

communication and contact with Mr.

Ghomeshi

post-assault were part of her clear attempt to
normalize relations with him.
Publication Ban

Ms.

DeCoutere

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

and that making things
Ghomeshi was a priority

She knew she would have dealings with

Mr.

Ghomeshi in the Canadian arts community.

Ms.

Henein may ask Your Honour to find that

Ms.

DeCoutere deliberately did not disclose

some of her post—assault 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.

Ghomeshi’s 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

DeCoutere’s 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.

DeCoutere’s

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,

I’m 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 cross—examination,

DeCoutere was motivated

to fabricate her allegations for the media
attention that ensued.

Certainly,

the line of

cross—examination was put to her that she was
reveling in this attention.

Ms.

Dunsworth’s

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,

there’s a number of confirmatory

pieces of evidence that we can point to.
Certainly, we know that Ms.
same circles,
30

Mr.

Ghomeshi.

was in the

if I could use that word,
She knew Mr.

Canadian music industry.

as

Ghomeshi from the

She had seen him for

number of years prior to formally meeting him
Publication Ban

29.
Submissions of Mr. Callaghan
in

in the intimate context.

-

Ms.

We know that

performed at the

festival in Toronto.

dance

There certainly is a

poster that was filed as an exhibit.
5

the time frame.

We know

We know that they had a

romantic relationship that really extended
between the window July the
3
r
d,

to August the

when we know that she’s at the Pride Parade

in Vancouver and,
10

th
15

according to her evidence,

says “Don’t 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 didn’t 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 couldn’t 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.

Ghomeshi’s 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 didn’t recall,

this court can take confidence in what
Ms.

did recall,
Publication Ban

especially given some

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

It is anticipated that my friend will

challenge the reliability of Ms.
memory by relying on what was put to the
5

witness as a reenactment wherein Ms.
appears to be unclear in what happens to her.
When questioned about this, Ms.
clear to say
to her,

10

-

was

and there was a video clip put

you’ll recall,

wasn’t 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
complainant’s testimony,
suggest,

Your Honour,

similarly,

I would

this is not the type of

case one would anticipate finding external
evidence,
20

and it is one where,

with the passage

of time and the vicissitudes of life, Your
Honour should carefully consider the evidence
of each witness in that context.

Turning to

the issue of credibility of Ms.

it’s

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 witness’s 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.

It’s

was clear that she didn’t have a

good recollection, but she’s 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 cross—examined

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 Honour’s
submissions

(ph),

in the Crown’s submission.

The defence may also point to Ms.
strong dislike of Mr.
25

Ghomeshi,

s

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 that’s 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
it’s really hard to

see how that could detract from the

10

credibility,

in the Crown’s 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 wasn’t
relevant and that she hadn’t specifically been
asked the question about that conduct.
think Ms.
20

But I

did come to admit that she

withheld the information from the police
because she was embarrassed by her error in
judgment.

She also maintained that it in no

way negated the fact that she was sexually
assaulted by Mr.
25

Chomeshi.

The fact that some

witnesses may be embarrassed to tell the police
about these type of events is certainly not
difficult to comprehend.

Ms.

in

particular conveyed this embarrassment to the
court.
30

It is open to Your Honour to accept

that explanation.

Your Honour,

of these proceedings,

in the course

Your Honour has heard

evidence that may cause you to have concerns
Publication Ban

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

as the trier

as I’ve indicated above,

shouldn’t
5

But,

that

that’s 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 Crown’s 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

5

the very offences being

was steadfast.

Those are my

submissions,

Your Honour.

MS.

Your Honour,

HENEIN:

I’m 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.

We’ll do that.

10
RECESS

UPON

RESUMING:
MS.

15

HENEIN:

Thank you,

Your Honour.

Just so

you have a road map of how we’ll be presenting
our argument,
Ms.

we’ve divided it up.

Robitaille will be addressing the evidence

that you’ve heard before you with reference to
the transcripts.
20

And I understand the court

has been obtaining copies of the transcript.
And then,

I’m 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,

we’ll proceed.

SUBMISSIONS OF MS.
MS.
30

Thank you.

ROBITAILLE
ROBITAILLE:

Your Honour,

handout that I provided Mr.
THE COURT:
MS.

that’s how

there is a

Clerk.

Thank you.

ROBITAILLE:

And it is just an aide memoire

Publication Ban

35.
Submissions of Ms. Robitaille
for Your Honour.

I don’t propose to go through

it in order or in detail,

but the transcripts

references are there for you and I hope that
they’re of assistance.
5

What I will do is cover

a few areas in the witness’s 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.

You’ll
gave a

number of media interviews before she went to
police.
20

And,

in those media interviews,

characterized an assault in the car very
differently than

than how she ultimately

characterized it to the police.
with the media,
pulled by Mr.
25

she

When speaking

she indicated that her hair was

Ghomeshi out of the blue and that

it came at a time when she was not being
intimate with Mr.

Ghomeshi.

So,

you recall the

description provided to the CBC on the radio
and on TV was of this reaching over and pulling
of hair.
30

And to be clear,

this is not the

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

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

in her police statement,

as she went further

she ultimately

conceded that the kissing and the hair pulling
in the car were intertwined.
trial,

Finally,

she added that the kissing was sensuous

or sensual kissing in the car.
10

at

Ms.

explained this inconsistency between her
version to police and the version she provided
the media as follows.

She said that she

the time she was speaking to the media,
not sure of the order.
15

at

she was

She was not sure of

when she was kissed in terms of whether it came
at the same time as the hair pulling,
after.

before or

And it was for that reason of her

lacking clarity on the order that she didn’t
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

you’ll 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 that’s what she
oath.

she said

the question came during the hair

pulling and kissing.
30

When she testified at

And so,

Your Honour.

She ultimately conceded

she told police under

you have an inconsistency there,
Ms.

Publication Ban

also,

not

37.
Submissions of Ms. Robitaille
insignificantly,

testified she could not recall

what her answer to the question was,
question of “Do you like this?

this

Do you like

that” that happens during this intertwined hair
5

pulling and sensuous kissing.
recall her answer.
Honour,

She cannot

Those inconsistencies,

Your

go to the question of whether or not

the Crown has proved beyond a reasonable doubt
that this incident in the car ever happened.
10

And it also,

in my respectful submission,

should go to whether or not the Crown has
proved the absence of consent beyond a
reasonable doubt.

You’ll 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 e—mailing and
calling each other frequently and where the
Publication Ban

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

She also explained in this

November 2 e-mail that

to

to the police

that she was starting to remember that her head
5

was smashed into the window during this
incident.
that,

10

there was no head smash.
the Toronto Star,

-

radio,

the police,

a head smash.
of

Your Honour,

in the four previous tellings of the

story,
the

And you’ll recall,

the CBC,

she told

on TV,

on the

and nowhere in there was a

But she e—mails police to advise

of this new recollection.

from it but,

So,

again,

She resiled

only in cross—examination,

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,

you’ll 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.

You’ll recall also, while

we’re in the car,
30

that Ms.

while

was adamant

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

Ms.

Henein put to her that that is what she
Publication Ban

39.
Submissions of Ms. Robitaille
described to police,

that her hair was being

pulled back towards the seat.
refused to admit it and,

Ms.

ultimately, when the

video proof of that fact was put to her,
5

still had significantly
difficulty conceded
fact,

significant

conceding that that’s,

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.

You’ll recall that

told the Toronto Star and CBC TV

that she was pulled down to the floor by her
hair, but she told CBC Radio that she was
thrown to the ground.

Ultimately,

what she

tells police is that the events are very blurry
25

and that she does not know how it is that she
got to the ground.
her that there was

And,

when Ms.

1-lenein put to

that she had said thrown

and she had said pulled on different occasions
and that she had also told the police she could
30

not remember,

this witness testified and

maintained that being thrown and being pulled
were the same thing.

In terms of the other

Publication Ban

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

-

this

you’ll

recall that this witness gave evidence about
yoga moves,
5

that she was

she was in the midst

of doing yoga moves at the house,
up and down off the couch.

that she was

She had a very

difficult time explaining what it is exactly
both of the parties were doing in and around
this assault.
10

witness stand
trial,

She

by the time she hits the

by the time she testifies at

she remembers more kissing than she did

in her police statement,

and that is another

significant inconsistency for Your Honour’s
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

Ghomeshi’s 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,

you’ll recall that Ms.

indicated that her memory
right,
5

Your Honour.

just want to get it

She explained that her

statement to police was taken in the “early
days” of her memory and that,

for her,

memory improves as she sits with it.
respectful submission,

her
In my

that explanation does

not assist Your Honour when a statement is
10

taken 12 years after the events.

We know

experienced trial judges know that memories
don’t get better over time.

The

the witness

also explained that she was nervous during her
police interview.
15

And I know my friend

referred to that in his submissions.

And I ask

that you consider that evidence in conjunction
with the media interview she gave immediately
after giving her statement to police where she
indicated that the police treated her with
20

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

when this witness gives the explanation

that the inconsistencies between her sworn
police statement and her sworn trial evidence
25

can be explained by her nervousness with the
police,

I ask that Your Honour take a look at

her interview wherein she describes the process
as a lot easier than she thought.
testified,
30

Ms.

and this was something that she had

said over and over again in the media and to
police,
house,

that the trauma of the events at the
count 2,

were so significant,

Publication Ban

that every

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

Ghomeshi’s 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 we’re 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 witness’s 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 e—mails,
Ms.

2 and 3,

sent to Mr.

-

that

Ghomeshi.

They were

sent one year and one year and a half after
this alleged incident at the house.
25

they prove is that Ms.
Mr.

Ghomeshi again,

him on TV,

indeed saw

that she enjoyed watching

and that she wanted Mr.

contact her by e-mail and phone.
e-mails that Ms.
30

police.

And so,

And what

Ghomeshi to
These are the

never disclosed to
when Your Honour looks at what

is the significance to attach to the subsequent
communication to

with Mr. Ghomeshi,

Publication Ban

the

-

the

43.
Submissions of Ms. Robitaille
significance aligns perfectly with the
witness’s own paradigm.

You’ll recall this

witness explained to police “Look,

5

this event

was so traumatic for me,

I had to stay away.

couldn’t listen to him.

I couldn’t watch him”.

That is her own explanation of how she reacted.
It’s no one else’s.

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 examination—in—chief,
disclosed that she had sent an e-mail in anger
to Mr.
airing.

Ghomeshi she believed at the time Q was
Couple of things about this

explanation,
15

Your Honour.

At the time these e—

mails were sent, Q was not on the air.
an agreed fact between the parties.
respectful submission,

That’s

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 e—mail 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 e—mail.
mail sent in anger”.

I didn’t say

I said it was an e

And let me

let me show

you something that some of us might have missed
Publication Ban

44.
Submissions of Ms. Robitaille

F

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:

You’ll recall Ms.

Henein was

putting to this witness that she was asking in
the e—ma±ls 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 didn’t tell the police about that.
Answer.

I didn’t remember.

Question. And you didn’t 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
e—mail.

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 witness’s
evidence that “I remember reading these” which,
in my respectful submission,
30

is evidence that

this witness knew about these e—mails before
she hit the witness box.

They didn’t go into

some deep recess of her mind.
Publication Ban

She knew about

45.
Submissions of Ms. Robitaille
them.

He had reviewed them.

She telegraphed

that in her examination-in—chief with
Mr.

Callaghan,

corrected Ms.

Heriein at the

outset of her cross—examination,
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 witness’s credibility and reliability that
are impacted by these e—mails.
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
witness’s failure to disclose them and her
effort to conceal them from the court.
that,

in my respectful submission,

And

should cause

this court with very grave concerns in
20

accepting any of her evidence,

especially the

events she describes that make out count 1 and
2.

In my respectful submission,

Ms.

evidence can’t 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 we’ve

put forward for Your Honour’s consideration in
relation to Ms.
Ms.
30

You’ll recall

had a approximately a five or six

week period between when the scandal in
relation to my client erupts on October
when she ultimately goes to police the
Publication Ban

th
26

and

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

And,

in that period,

speaks to and sees a number of

people and is influenced in a number of ways.
She admits that,
5

in that time period,

she gives her statement to police,

before

she is

consuming media stories about the case.

We

also know that she spends a significant amount
of time speaking with and messaging
Ms.
10

DeCoutere,

case.

another complainant in this

significantly,

And,

course of this prosecution
earlier than that,
September 2015,
between Ms.
15

over the

the life

actually, a bit
from October 29 to

there are 5,000 messages
and Ms.

DeCoutere.

you’ll recall that Ms.

And

told

Mr. Callaghan in chief that she and
Ms.

DeCoutere did not speak about the specifics

of their allegation.

And it was only in cross—

examination where specific entries of their
20

Pacebook correspondence were put to her where
she finally admitted that,

yes,

in fact,

had talked about the specifics of their
allegations.
about.
25

Ms.

they

their

And that was not all they talked
DeCoutere and Ms.

about third party witnesses,
disclosure to defence,
with the Crowns.

spoke
the process of

court dates, meetings

There was a very full and

frank discussion between the two of them about
all matters relating to this case.
30

They

described themselves as Insta sisters and
Ms.

urged Ms.

DeCoutere to lead the pack

in relation to this prosecution.
Publication Ban

They shared a

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

DeCoutere’s 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.

You’ll recall that Ms.

told the court

admitted her statement that,
hearing,
with
15

-

Your

at the first bail

the bail hearing she had nothing to do

she wanted to cozy up with a bowl of

popcorn and a shit eating grin,
to see Mr.

Ghomeshi cooked,

sink the prick,

that she wanted

that it was time to

and that she would do anything

she could to put him where he belongs.

These

were the things these two witnesses were
20

talking about leading up to the trial,
Mr.

Callaghan,

in his submissions,

and even

indicated

that partiality is something appropriate for
Your Honour to look at when assessing
credibility and reliability.
25

submission, Ms.

In my respectful

‘s description of the

events at the park are vague.
uncertain.

And,

They are

in fact, when she told police

about them in November of 2014,
much of the description of
30

she qualified

of the events.

She told police he was kind of squeezing,
were kind of around my neck”.

She was unsure

if it was one hand or two hands.
Publication Ban

‘‘They

By the time

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

Your

she describes two hands around her
Again,

it is an event that lasts,

according to this witness,
5

of course,

seconds.

she is at the police station,

But when

what she

testified was that she was trying to figure it
out,

trying to figure out what it is that

happened.

And,

in my respectful submission,

it’s 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 you’ll recall her evidence

with respect to why it is she didn’t 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 don’t really feel like there’s anything to
press charges against,

you know?”

That was this witness’s evidence under oath to
the police and she acknowledged it here before
25

Your Honour.
Honour,

This was another witness,

who used her subsequent non—contact

with Mr.

Ghomeshi as a way to bolster the truth

of her allegations.
Ms.
30

So,

you’ll 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

That’s 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,

let’s just deal with the post-break-up always
keeping her distance,
occasional run—ins.
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 e—mail

as a professional e—mail,

an e-mail that she

sent in her professional capacity.

And she

reviewed the contents of the e—mail 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 e—mail.
25

Your Honour,

I ask that you look at this e—mail

sent February
after

But, more significantly,

th,
24

or a year

2004,

just a few months

it’s 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 e—mail is very friendly and

and there’s the request at the end “Still
Publication Ban

50.
Submissions of Ms. Robitaille

wanna have that drink sometime”.
respectful submission,

the

In my

the language and

tone of this e—mail 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
witness’s interaction with Mr.
10

months

Ghomeshi 7

a mere 7 months after what she has

described as a sexual assault and the tone that
she has 12 years later,
hates Mr.

Ghomeshi and will do anything to put

him away.
15

It is a very confounding bit of

evidence,

Your Honour,

respectful submission,
of Ms.

where she very much

and

and,

in my

the intervening factor

DeCoutere goes a long way to explain the

difference.

Ms.

explained to police

that she went on four dates with Mr.
20

that she was at

on

at a dinner date on the

Danforth on one occasion,
another,

Ghomeshi,

on the park bench on

at a King Street bar and dinner on a

third occasion,

and a party on a fourth.

That’s what she told police after they asked
25

her to give as much detail as possible.
Exhibits

won’t turn them up,

They’re electronic.

And

Your Honour.

But Exhibits 43 and 44 are

the excerpts of that statement to police where
Detective Ansari and Detective Hancock are
30

trying to get from this witness what it is
exactly that happened between the parties.
Detective Ansari is asking Ms.
Publication Ban

to go

So,

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

who did they see,

cetera.

And the

5

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:

You’ll 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 she’s testified to

it under oath at the police station,

that

Ms.

and that

went on these four dates,

was the extent of her interaction with
Mr. Ghomeshi,
Ms.
25

these four public dates.

And

is here in the courthouse on

February 2,

preparing to testify,

and she says

nothing about this further sexual interaction
with my client.

It is not until February

4
t
h,

when she gives the second statement to police,
this 9 minute second statement to police,
30

revealing that,

contrary to what she had told

police,

her dates with Mr.

public,

that,

in fact,

Ghomeshi were not in

after the third date,

Publication Ban

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

and there was a sexual

and he spent some time sleeping in

In my respectful submission,

that

chronology of this disclosure should weigh very
5

heavily in Your Honour’s assessment of this
witness’s 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 wasn’t

asked specifically by the officers about
consensual sexual activity.
Your Honour,

Ms.

And you’ll 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 didn’t disclose it
was because they simply didn’t ask the right
question.
20

She also maintained that her hand

job wasn’t sex and it wasn’t 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 e—mails 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 isn’t “Wow.

Look at how this

witness interacted with my client after she
said she was assaulted”.
submission.
5

That’s 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.

That’s how she characterized her

interaction.
10

That’s 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 you’ve
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.

Dunsworth’s evidence

in relation to

If I could deal briefly with
in my respectful submission,

submissions on the motion

assist your task,

and you heard my

does not really

Your Honour.

Her evidence

does not help you resolve the real problem with
Ms.
30

DeCoutere’s evidence.

And there’s a

section I’d ask Your Honour to take a close
look at in her
Ms.

in her statement,

Dunsworth’s statement,
Publication Ban

where she says that

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

DeCoutere

fairly close to the event and that she
understood that Ms.

DeCoutere wasn’t really

into him and that her interaction that night
5

kind of sealed the deal.
Ms.

Dunsworth’s recollection of

the story from Ms.
we know,

and

-

Ms.

-

to it,

What

in the

that there’s no question

DeCoutere was into him.

she was.

of hearing

DeCoutere at the time.

and I’ll get to

later exhibits,
10

That’s

And so,

Ms.

By her own words,

Dunsworth’s evidence with

respect to this utterance doesn’t make a whole
lot of sense.
to Ms.
15

Here are the areas with respect

DeCoutere,

that Ms.

Your Honour.

You’ll 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

let’s deal firstly with the incident itself.
10

For the first time in examination-in—chief,
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 you’ll recall Ms.

Henein put to her

that the sequence of events is as follows,
that,

while she’s coming back from dinner to

the house,
advances,

she is rejecting Mr.
but,

Ghomeshi’s

after the assault,

she’s kissing

him on the couch and she’s 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 didn’t 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

didn’t think the kissing was consequential.
And again,

I ask Your Honour to assess the

witness’s 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 there’s 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 don’t 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

didn’t 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 didn’t like him.

And you’ll 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,
-

a

sequence that occurred during trial.
February 2’’,
25

Ms.

2016,

a
It was on

in the course of trial,

that

DeCoutere’s lawyer floated a hypothetical

to the Crowns

-

and that’s in the agreed

statement of fact
contact.

-

about post—incident

And that is the first time that

anyone heard that Ms.
30

as with

DeCoutere had anything

else to say about her post—incident contact
with Mr.

Ghomeshi 16 months after her police

statement.

And so,

the morning before she took

Publication Ban

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

she sat down with

police and provided them with further details
of her interaction with my client.
them about sending him flowers.
5

She told

She told them

about seeing him in Banff the next year and
sending him e-mails.

She told police in that

brief interview before her testimony that

that those interactions were an attempt to
normalize the situation,
10

and that’s,

in fact,

what she said to Your Honour in chief.

And

and I’ll take you through how it is this
witness’s explanation for her contact evolves,
depending on what she’s 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 e—mails were put to the witness in the
course of cross-examination.

You recall that

there are e—mails in Exhibits 13,
I won’t take you to them,
25

and 15.

Your Honour,

but

those are the e—mails that relate to the
Geminis in 2003.

In examination-in-chief and

in her police statement,
about this

Ms.

DeCoutere talked

this incident where Mr.

made reference to,
30

14,

Ghomeshi

by touching her neck,

events of that weekend.

to the

And what she didn’t

tell police in either statement or Your Honour
in chief was that she had communicated with
Publication Ban

59.
Submissions of Ms. Robitaille
Mr.

Shomeshi several times before the Geminis

to try to see him,

that she was trying to set

up a time where she could meet with him while
she was in town for the Geminis.
5

recall that there was
where Ms.

And you’ll

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;

it’s not that she wanted to see

his show.
But,

it’s that she was gonna’

watch

That’s how she explained Exhibit 14.

as you’ll 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 she’s

going to be in Toronto and she wants to play
with him.
20

That is right before they have

dinner alone together at Allen’s on the
Danforth.
Honour,
no,

And again,

here,

you’ll recall,

that the witness still maintained,

that was a professional dinner.

Your
no,

She

guaranteed under oath in cross—examination
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 you’ll

recall how the witness described her
30

interaction with Mr.
chief.

In chief,

Ghomeshi in Banff in

she said that she only

interacted with Mr.

Ghomeshi in Banff because

Publication Ban

60.
Submissions of Ms. Robitaille
she was scared he didn’t have any friends there
arid didn’t know anyone,
to feel badly.
e—ma±ls,
5

So,

and she didn’t 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 wasn’t lonely
10

is not an explanation for those e—mails.
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 e—mails got disclosed,

Honour,

you’ll 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 cross—examination 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

e—mail evidence was put to her.
ask Your Honour to

And so,

I

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 didn’t see him except for
professionally.
months later,

On the precipice of trial,

she gives a little more.

Publication Ban

She

16

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

But she’s

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 it’s 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

what’s being alleged in this case,

Your Honour,

and should be assessed in the context of the
Crown’s burden to prove that the thing happened
and that there was no consent.
20

just pull up those exhibits.

And so,

if you

And I’m nearing

the end of my portion of submissions.
Thirty—five,

Your Honour.

This is the exhibit

this is the e-mail sent 13 days post their

date that Friday night in July of 2003.
25

this is where Ms.

And

IDeCoutere describes a scene

in a popular television show and is relating it
to her feelings for Mr.

Ghomeshi.

And the last

paragraph is
“I think you are magic,
30

you.
you,

and I would love to see

I am realizing that,

in the note I mailed

I was really asking if you could go to

Crappy Tire to help me pick out an electric
Publication Ban

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

she’ referring to the previous

paragraph about the TV show.

5

And that is

Ms.

DeCoutere’s 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

Crown’s 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.

Ghomeshi’s house on Friday the

my respectful submission,
should be assessed.

that goes

4
t
h

And,

in

and that

That piece of evidence

should be assessed in whether the Crown has
25

made out the offence before Your Honour and,
particular,
on it,

non-consent.

Your Honour,

And

in

and while we’re

you’ll recall this

witness’s evidence that

that “kicked my ass”

did not refer to the physical interaction
30

between her and Mr.

Ghomeshi,

but,

in fact,

this cerebral interaction they had had through
their relationship.

That was her description.

Publication Ban

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

37.

And the letter is the next
th,
9

It’s 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 cross—examination
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 didn’t spend the night together.
I could have been more open with you than in
20

person rather than with pen and paper.
disclosures in café 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
witness’s 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?

I’m in your

hands.
THE COURT:
Now,
15

if we’re

go straight through.

if we’re not done by 1,

we’ll

break about then.
MS.

HENEIN:

THE COURT:

SUBMISSIONS OF MS.
20

I was gonna’

MS.

We’ll 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 you’ve
heard before you.
25

Some of them have been

touched upon by the Crown.

And you’ll see that

all the cases that my friend has referred to
are in there and have been sidebarred,
including the definition of sexual assault,
elements of the offence.
30

But there are some

areas that I do want to highlight for you.
I think the starting point is to place this
into context,

and that is starting with

Publication Ban

the

And

65.
Submissions of Ms.

Henein

Lifchus,

if I can ask you to turn that up at

tab 10.

It is well known that the burden is on

the Crown to prove guilt beyond a reasonable
And if I can take you to paragraph 13,

doubt.
5

the Supreme Court of Canada defining what that
means,

but perhaps most importantly,

the reason

that that is the standard of proof in this
country.

At paragraph 13,

‘‘The onus resting upon the Crown to prove the
10

guilt of the accused beyond a reasonable doubt
is inextricably linked to the presumption of
innocence.

That jurors clearly understand the

meaning of the term is of fundamental
importance to our criminal justice system.
15

It

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

20

tragic errors.

with all

can still make

A fair trial must be the goal

of criminal justice.

There cannot be a fair

trial if jurors do not clearly understand the
basic and fundamentally important concept of
the standard of proof that the Crown must meet
25

in order to obtain a conviction”.
And,

of course,

that standard of proof applies

equally to this honourable court in considering
the evidence.

I want to make two comments on

the elements of the offence.
30

And one of the

things that my friend did not address is there
is a count before you of overcoming resistance
by choking.

I do want to take you to some law

Publication Ban

66.
Submissions of Ms.

on that,

Henein

because there are elements which,

my respectful submission,

in

are simply not met on

the evidence adduced through the witness,
Ms.
5

DeCoutere.

In order to be guilty of this

offence, which is very specific,

and that is

choking to overcome resistance to commit
another offence,

the accused must choke the

victim to render them
of the court
10

and this is the words

insensible,

incapable of resistance.
that for you,

unconscious or
And,

if I can just take you to tab 6,

the judgment of Hill.

And,

beginning at paragraph 17,
actually quoted.
15

to highlight

in that judgment,
the provision is

But paragraph 18 sets out

what the actus reus and the mens rea is for
that offence.

So,

it requires the accused to

have the specific intent to commit an
indictable offence such as robbery or
aggravated sexual assault.
20

The actus reus or

the external element of the offence occurs when
the accused attempts by any of the above means
to choke the complainant.
I’m 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

It’s 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

It’s 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 Crown’s 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

I’m 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 complainant’s

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

complainant’s 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 complainant’s 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 complainant’s 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 complainant’s conduct is consistent with
her claim of non—consent.

The accused’s

perception of the complainant’s 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.

I’m 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

complainant’s efforts to conceal them.
respectful submission,

In our

the defence submits that

that burden has not been met by the Crown and
that the evidence in this case should raise
very significant concerns,
15

as my friend fairly

put before you with respect both to credibility
and reliability,

and they are two very distinct

issues that must be considered.

Credibility in

general is something that this honourable court
deals with routinely in all cases.
20

there are some things that,
in my respectful submission,
mind.

And so,

as a general rule,
should be kept in

The first is that a witness who simply

repeats the same story over and over does not
or is not necessarily credible or reliable.
25

The mere repetition of a version of events in
and of itself as a matter of law does nothing
to assist the court in assessing credibility.
And,

in a case book that we gave to you before,

there is a case called Stirling from the
30

Supreme Court of Canada.

I just want to leave

you the paragraph that references that is
paragraph 7.

It is impermissible to assume

Publication Ban

70.
Submissions of Ms.

that,

Henein

because a witness has made the same

statement in the past,

he or she is morelikely

to be telling the truth.

A concocted statement

repeated on more than one occasion remains
5

concocted.

Secondly, my friend talked to you a

little bit about the issue of corroboration.
The fact,

for example,

that Ms.

she went to a Play episode,
she’s 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 don’t have that for you

at paragraph 43 talks about confirmatory
20

evidence that must be capable of restoring the
trier’s faith in relevant aspects of the
witness’s account.
what’s at issue

And so,

that’s really

has my friend pointed to

things that would support the witness’s
25

credibility in relevant aspects,
aspects that are in issue.
to my friend’s 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,

a

judge may look at the evidence and the content
of it and say the absence of detail here is
irrelevant.
5

It just doesn’t 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 friend’s 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,

that’s just

well, maybe that happens on

in 24 years practising in these

that is a rare event.

they’re unshaken
maintained,

in other words,

as they will,

understandably,

And so,

saying

that they

of course,

their position doesn’t 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 didn’t

as we have heard in many, many

and judges routinely accept these sorts

of explanations,

“I forgot” or “I wasn’t 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.
didn’t communicate with”.
20

I

That is not the same

as putting to a witness “Why’d 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

doesn’t 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

examination—in-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 L’Heureux—Dubé at paragraph 46.
at paragraph 46,

And,

Justice L’Heureux-Dubé says

“Wigmore has noted that cross-examination”
Publication Ban

-

76.
Submissions of Ms.
sorry,

Your Honour.

THE COURT:

5

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
they’ve been inconsistent,
30

but you have to look

at what it is they’ve 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 you’ve heard

are relevant.

As one writer wrote in a novel,

the truth is often found in between the lies.
And,
25

in my respectful submission,

this case.

In our courts,

that is so in

witnesses are not

presumed to be truthful because of who they
are.

A witness is not believed just because he

or she is a police officer or an expert,
we’ve
30

and

we’ve been reminded of those lessons

over and over again.
its own merits,
it’s consistent,

Testimony is judged on

whether it’s logical,

whether

in accord with this court’s

Publication Ban

78.
Submissions of Ms.

Henein

common sense and human experience,

and the

known facts that have been adduced before you.
Courts don’t 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 someone’s truthfulness depends
on who they are,
10

still exist.

not what they say,

And,

and they

in my respectful submission,

the one thing that we know is that those types
of legal systems result in hurting the very
people you think they would be designed to
protect.
15

So,

it does no favours to anyone,

my respectful submission,

in

to ask this

honourable court to set aside ordinary scrutiny
or common sense in assessing the evidence that
you have heard before you.

My friend has

talked a little bit about what is and is not
20

relevant,

for example,

behaviour,

the law on post-assault

on delayed disclosure.

is very well established.

All of that

It is not new,

it is not emerging for the first time.

25

and

But

those strides did not commence on February

1
s
t

or those issues to be raised.

our

As we know,

courts have wrestled with this since Seaboyer
and Ewanchuk and Mills and O’Connor,
Criminal Code,
been raised.
30

276 and 278,
And people

profoundly committed,

and the

things that have
women who have been

such as

Justice L’Heureux-Dubé,

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 don’t delegate this to

self-professed experts.

And we have in there

I’ve 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 aren’t 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

isn’t 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 that’s not the case before you

20

and that’s 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.

That’s

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 I’d 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

Wigmore’s observation that the greatest legal
engine ever invented for the discovery of truth
is a trial and the way that it is conducted.
That’s why we have trials,
30

because nothing is

evidence until it’s 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 that’s not something

particular to charges like these in this case.
It’s 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 it’s proceeded.

But I guess

I’d 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

‘‘H±gh 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”.
You’ve 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

It’s 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 it’s

not my chance to repeat my submissions,
10

but

there are a few issues I’d 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 it’s 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 didn’t consent to being
choked or slapped.
couldn’t have,
30

She could have

she

because she wasn’t asked in the

the circumstance,

according to her evidence.

There’s 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,

I

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 don’t 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 Honour’s determination at the
15

end of the day when you look at all of that
information.

But I would suggest to you it’s

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

Dunsworth’s 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-ma±ls.

I think there’s 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.

I

clearly gave a response “No.

I wrote that but I didn’t mean that”.
think it’s really clear in all

-

Well,

I

in a number of

the e—mails 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

-

I’d urge Your Honour to

carefully look at her evidence,
30

submit Ms.

Ghomeshi’s

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 won’t come as

any surprise to counsel that I’m 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 everybody’s available at

that time.
THE COURT:
20

March the
MR.

Right.
th
24

CALLAGHAN:

MATTER

So,

we will reconvene on

for judgment,

then.

Thank Your Honour.

ADJOURNED

25

Publication Ban

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