It could be appeal time for Jian Ghomeshi, once renowned radio host now deemed sexual assailant by millions all over the world. Monday marks the last day where the Crown prosecutor has the opportunity to appeal the Jian Ghomeshi acquittal, of a trial where famed and now former radio celebrity faced 4 charges of sexual assault and 1 charge of overcoming resistance by choking. He walked. Which was weird to a lot of people because the victim count of Jian Ghomeshi by multiple reports could (allegedly) fill an entire gymnasium. In this trial that began February 1 of this year, 3 victims took the stand and were eviscerated for doing so. And if the Crown pursues an appeal of this highly controversial verdict, these victims will have to go through it all over again. All that is needed for an appeal to retry the Ghomeshi charges is one error of law. The CBC reports April 21 that, a Toronto based lawyer says, the Crown might have one. That same lawyer refers to the Judge Horkins ruling in this case as, “creative writing.”
It’s something that many have been saying since the ruling came down. Where did Horkins come up with this? One point of contention that could be considered an error of law is reported by CBC in the Horkins ruling on the now infamous “Love Bug.”
During the testimony of Victim one, who has now waived her publication ban and come forward with her identity, a vehicle was discussed. Victim one, Linda Redgrave, called it the Love Bug. It was a yellow Beetle.
Judge Horkins referred to the Love Bug in his ruling, even had an entire section of his ruling labelled “The Love Bug”, and said she was wrong. He also said according to Canadaland, who has examined the issue of The Love Bug at length, that Judge Horkins ruled,
“This demonstrably false memory weighs in the balance against the general reliability of L.R.’s evidence as a whole.”
That was part of Horkins ruling on The Love Bug. Never mind that memories are tricky after trauma, Judge Horkins had no business ruling that way on the Love Bug according to the statement of facts that was agreed upon by both sides prior to the trial even starting, says Canadaland. The CBC reported yesterday at worst this is “creative writing” on the Judge’s part, and at best, could be a “significant error” that makes grounds for an appeal.
The recap of testimony is that Linda Redgrave, Victim One, testified that she was assaulted in a yellow Volkswagen Beetle. She said she thought it was that, but that it was dark that night. Truthfully, her mind wasn’t on the make and model of his car.
She did testify however that the Beetle felt like a Disney car, and psychologically this made her feel safe. She was anything but.
Her biggest memories that night are of when her head was smashed against the window, and when she was punched in the head by Jian Ghomeshi. Judge Horkins ruled, Ghomeshi didn’t even drive that kind of car at the time, and thus, I believe you are lying and am throwing everything you said out. Defence lawyer Karen McArthur told the CBC recently,
“As a matter of law, he couldn’t come to that conclusion.”
When cross examined about the Love Bug by Ghomeshi defense lawyer Marie Henein, Marie tried to tear about Linda’s testimony about the make and model of the car. Henein said that Ghomeshi owned a Volkswagen Golf GTI at the time of the traumatic event, and got the Beetle “months and months” later. A statement of facts agreed upon by both parties reveals that Ghomeshi did in fact lease a Volkswagen Beetle on July 14, 2003.
It’s a distinction with a very big difference. A difference that could lead to an appeal. Defence attorney Karen McArthur told the CBC the ruling “engaged in creative writing”, and that Horkins “came to that conclusion through fiction.” In other words, Horkins decided he was going to turn Marie’s suggestions, and his assumptions, into fact.
That is not legal in Canada. That would constitute an error of law and grounds for appeal. McArthur says, all Henein did was make the suggestion that Linda was wrong about the car. Henein did not enter that suggestion as fact, but Horkins got creative with it says McArthur.
“Could Horkins make that fact? There was no evidence about that. None.”
Never was there any evidence entered as to the make, model, and colour of the car that Linda Redgrave was in when she was assaulted by Jian Ghomeshi. Not once. So the Judge created it.
Linda’s lawyer, Jacob Jesin, has issues with the Judge Horkins ruling as well. On the issue of the possibility of appeal, he has said,
“We have reviewed the judgment very carefully and have concluded there may well be grounds for an appeal, in relation to the verdict, on the charges that centred around our client.”
These concerns have been communicated to the Crown, who has until Monday to file for an appeal. This was not the first time concerns about the vehicle were noted by the Crown. Canadaland reports the Crown in fact noted these discrepancies in his closing arguments when Crown prosecutor Michael Callaghan said,
“One point I want to focus on is with respect to the – the car. Ms Henein challenged (the victim’s) recollection that Mr. Ghomeshi drove a yellow Volkswagen Bug. In agreed statement of facts, it was admitted as fact that Mr. 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 drove in December of 2002. And so, the suggestion made to (the victim) should really play no part in Your Honour’s assessment of reliability. There’s a factual vacuum.”
Judge Horkins ignored this and dove into that factual vacuum to call the victim a liar. He did not even address the Crown’s closing statements in his ruling.
So why would Judge Horkins hang his hat, and destroy a woman’s credibility and reputation, on this car fact? Could it be because his son works with Marie Henein every day? Could bias be another (and perhaps even the main) reason the Jian Ghomeshi verdict went the way it did?
It seems a little inconsistent from a guy who called the victim inconsistent, and worse. He also accused one victim of playing chicken with the justice system in his ruling reported by Maclean’s News.
Chicken? Chicken is, not taking the stand to, meet the allegations directly like you promised, when you’ve been accused of violent crimes. Opening up some of the most humiliating moments in your life as these victims did, to the entire world is the exact opposite of playing chicken.
As the Ghomeshi verdict has been processed by the court of public opinion, over time, more and more talk has turned to elements of the trial that, just don’t make sense. It seems to many the entire ruling was fraught with errors of law that could be grounds for appeal.
It is non-sensical to most Canadians, and people with rational brains world wide, that Ghomeshi got off. That to many, most notably the potential gymnasium that could be filled with Ghomeshi victims, is the biggest error of law of them all. The Love Bug is just one detail that just isn’t sitting right with a lot of people.
Another key matter that has greatly disturbed Ghomeshi trial watchers everywhere is the abundance of email material that was presented in cross examination of the victims during the trial process. In cross examination, defense attorney Marie Henein cross examined actress Lucy DeCoutere on communications between herself (Lucy) and Victim #3 of the Jian Ghomeshi trial. There was, according to testimony, over 5,000 emails or digital correspondence exchanged between Victim 2 and Victim 3.
Defense claims this proves collusion between the victims. But it doesn’t prove anything other than that a friendship existed between two people. Checking the Criminal Code, it does not reveal that a friendship between two people is a crime in Canada.
In a court of law, only evidence can prove something like collusion, and this material was never entered into evidence. In other words, the defense never proved collusion.
Sound shady? That’s because it is.
How did the defense get that material? It certainly could not have been obtained lawfully. Otherwise it would have in fact been entered into evidence, and Lucy would have known about it before she testified. Those are the Rules of Evidence in Canada. This email testimony has not only disturbed trial watchers, but the victims as well.
In a criminal trial, or any trial in Canada, all parties in a case are required to know what they will be testifying to, prior to giving testimony. This is especially true in a day and age when digital evidence has changed the landscape of Evidence Rules, and the Criminal Code.
Actress Lucy DeCoutere has told many media outlets that the night before that information came out, she slept like a baby. That is because she did not know what was coming the next day. That’s not supposed to happen.
This isn’t The Good Wife. Surprise evidence in a dramatic court moment doesn’t happen in Canada, legally.
This evidence is to be disclosed at the pre-trial (preliminary inquiry) level. This is stated in Rule 4.3 Section 3 of the Criminal Rules of the Ontario Court of Justice that states,
(3) The party who requested the preliminary inquiry shall serve the following materials on the opposing parties, together with the statement of issues and witnesses required by section 536.3 of the Code, and file them with proof of service, at least three days before the hearing:
(a) a list of witnesses whom the parties seek to have testify in person at the preliminary inquiry and, for each witness named in the list,
(i) a brief synopsis of the expected evidence,
(ii) an explanation of why in-person testimony is necessary, and
(iii) an estimate of the time required to examine or cross-examine the witness;
(b) a list of witnesses whom the parties propose to examine through a discovery process;
(c) a brief statement as to whether committal for trial is in issue, and on what basis; and
(d) a statement of admissions agreed upon between the parties.
Witnesses are supposed to, legally required to, know what they are testifying to. This clearly did not happen in the Ghomeshi trial. Lucy DeCoutere told the Fifth Estate that was the last good night she has had to sleep since.
Why? Because she was unjustly bombarded the next day with information that was never entered into evidence. What did the judge say about collusion?
“The team bond between Ms. DeCoutere and S.D. was strong. They discussed witnesses, court dates, and meetings with the prosecution. They described their partnership as being insta sisters. They shared a publicist. They initially shared the same lawyer. They spoke together of building a Jenga Tower against Mr. Ghomeshi. They expressed their top priority in the crude vernacular that they sometimes employed to ‘sink the prick’…”
How did the defense get those emails, Judge Horkins, is the question that should have been asked. This information should never have been even discussed at trial. And it most certainly should never have made it as part of a discussion in ruling. Judge Horkins admitted it himself, in both the opening and closing of his ruling when he said,
“This is a case that is entirely dependent on the reliability of their evidence standing alone.”
Actress Lucy DeCoutere, Victim Two in this trial, is puzzled about this part of the trial as well. When being torn apart by the world for collusion, she spoke out on Facebook to say, no it wasn’t.
“There was much made of this correspondence which in the end Marie never submitted as evidence. Why not? Because the words themselves show that, in fact, there was absolutely no proof of collusion. This is a very frustrating piece of the puzzle for me.”
So the emails used against the victims, and the slanderous statements Judge Horkins made about the victims as a result of those emails, could not be used against them. There is no legal basis to use the emails against the victims. But they were.
There is an absolute reason for all of the inconsistencies between Evidence Rules, The Love Bug, and the final acquittal of the not so great Jian Ghomeshi. But we don’t know what it is. Interestingly enough, Marie Henein has had many interviews herself after the Jian Ghomeshi trial.
This after, she chastised the victims for doing media interviews in the wake of the scandal. She also accused Lucy DeCoutere of reporting the scandal so that she could get more Twitter followers. Because beefing up the social media plan is always the agenda to report violent crimes, said no sexual assault victim anywhere, ever.
Marie Henein hasn’t balked at the publicity. She’s said a lot. One thing she hasn’t talked at all about is the fact that her brother works with Judge Horkins son.
That is not a small deal. During the very moments that Marie Henein was grilling Lucy DeCoutere on the stand on February 4 about collusion and conflict of interest, her brother and Judge Horkins son were at a law conference in New Orleans. Together, between February 2 and February 5.
They both work in the same big fancy law firm, where a lot of people work. But only 3 members of that law firm were at that New Orleans conference. Two of those three people have blood relatives directly connected to this case.
To suggest that it’s just a matter of coincidence that these two people do not have a close relationship, when they work together every day and are the only 2 of 3 people in a huge Toronto law firm that went to an international conference, is pure and utter hogwash to many. That is a conflict of interest.
If it wasn’t, people, like the people in that law firm, would be explaining it a little bit better. Instead they are just pretending that it isn’t being talked about. This is one of 4 deceptions in the Jian Ghomeshi trial, that nobody is talking about, that we have previously covered.
Marie Henein herself has used the Ghomeshi scandal as her own little public relations gimmick. A lot. She’s had many interviews or public appearances. She hasn’t said a word about that relationship, and its possible conflict of interest.
Which in itself, is weird. If it were so innocent she should be out there brushing it off. Because that’s what innocent people do. They meet allegations directly. Abusers however, deflect.
Monday will be the day the Crown makes the decision on whether or not the creative writing on Love Bug Gate goes under scrutiny at the Appeals level. Victim #1 has said, she’s all in. Victim #1, Linda Redgrave, has used these experiences to find a purpose of healing.
Not just for herself, but for others that find themselves in the same situations. She has established a blog and a Facebook page, Coming Forward, to help sexual assault victims do just that, come forward. She intends on publishing material that help victims navigate a complex legal process, and answer questions for them, that she was not aware of when she went through it. We’ve also reported similarly to help sexual assault survivors, in our coverage of sexual assault advice from Jian Ghomeshi.
Until then, the rest of Canada awaits the next Jian Ghomeshi trial. This trial will take place in June and have one victim, with an entirely different set of circumstances involving work place harassment. And this trial will have a new judge. The next Jian Ghomeshi trial begins June 6.