TORONTO – As the sexual assault trial of Jian Ghomeshi neared its final stages Wednesday, one thing became clear – the former broadcaster would not take the stand.
The 48-year-old former CBC Radio host, who has pleaded not guilty to sexual assault and choking charges, has maintained his silence ever since being arrested in November 2014.
The case will now move to closing submissions on Thursday, where the Crown and the defence will highlight key evidence heard in court and summarize their core arguments for Justice William Horkins, who will decide Ghomeshi’s fate.
Ghomeshi, as an accused, has no obligation to testify in his own trial.
“There are many reasons why an accused elects not to call evidence,” said John Rosen, a veteran criminal defence lawyer who’s been following the trial. “One of them is that the complainants have been destroyed in cross-examination.”
Another factor, Rosen noted, is that if Ghomeshi had chosen to testify, he would have also given the Crown an opportunity to cross-examine him. The judge would then have to weigh his testimony to see if it was credible, reliable and carried any new evidence, Rosen explained.
The “risk” to the defence in not calling its own witnesses, however, is that the judge has no counter-story to what has been heard in court, he said.
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Ghomeshi acknowledged in October 2014 that he engaged in rough sex acts, but said it was consensual.
His trial heard from three women who were behind the allegations at the centre of the case.
The first complainant, whose name is protected by a publication ban, testified that Ghomeshi suddenly yanked on her hair when they were kissing in his car in December 2002 and then, a few days later, abruptly pulled her hair while they were kissing in his home and then punched her in the head.
The second complainant, “Trailer Park Boys” actress Lucy DeCoutere, told court that she was with Ghomeshi in his bedroom in 2003 when he suddenly pushed her against a wall, started choking her and slapping her face while they were kissing.
The third woman, who also cannot be named, testified that while kissing Ghomeshi in a park in 2003, he suddenly bit her shoulder and started squeezing her neck with her hands.
Ghomeshi’s defence lawyer Marie Henein, known for her take-no-prisoners style, dissected the women’s testimony, casting doubts about their credibility and questioning their actions after the alleged sexual assaults, at times accusing them of lying.
In the case of the first complainant, Henein confronted the woman with friendly emails – and a bikini photo – she sent to Ghomeshi after the alleged assaults. The woman said she sent the emails as “bait,” hoping Ghomeshi would contact her so she could demand an explanation for the alleged assaults. The woman said she didn’t remember the emails when she spoke with police.
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During the dramatic cross-examination of Decoutere, Henein suggested the incident never happened, showing court an email the woman sent Ghomeshi hours after the alleged assault in which she expressed a desire to have sex with him. She also produced a hand-written letter the actress sent him days later that ended with the words: “I love your hands.”
Under a barrage of questions from Henein, the third complainant acknowledged she deliberately misled investigators by not initially telling them she had a sexual encounter with Ghomeshi a few days after the alleged assault. Henein also revealed that the woman and DeCoutere exchanged thousands of messages in which they discussed their allegations and their shared contempt for him.
While the three complainants’ testimony made up the bulk of evidence at the trial, the Crown introduced evidence from a fourth and final witness to the trial on Wednesday – a police statement made by DeCoutere’s friend and “Trailer Park Boys” co-star Sarah Dunsworth in November 2014.
The Crown said Dunsworth’s statement would corroborate DeCoutere’s allegations against Ghomeshi and put to rest claims by the defence that DeCoutere’s actions were motivated by a desire for fame and notoriety.
Dunsworth told a Halifax police officer she had known DeCoutere since 2000 and had formed a “really close friendship” that went beyond working together.
“She described an incident in which she had gone to his house and that he had ended up putting his hands on her neck and choking her,” Dunsworth told police, according to the statement. “We talked about the fact that they hand’t discussed it before-hand or that it wasn’t part of any kind of like sex play.”
Court also heard on Wednesday that DeCoutere had told Dunsworth over Facebook that police wanted to speak with her in an effort to corroborate her story.