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Lack of complainant credibility led to Ghomeshi's acquittal: Rosen

Former CBC host Jian Ghomeshi was found not guilty of sexual assault and choking charges because the complainants weren’t credible and their testimony not always consistent, Toronto criminal lawyer John Rosen tells AdvocateDaily.com. National Post CBC News Toronto Star

“The credibility of the witnesses was seriously undermined and attacked and it would have been dangerous to convict,” he tells the online legal publication. “And, in this particular case, credibility is key.”

Ghomeshi pleaded not guilty to four counts of sexual assault and one count of choking after three complainants came forward with allegations that date back to 2002 and 2003. Ghomeshi’s highly publicized trial was held in February.

Judge William Horkins handed down his verdict following a 90-minute decision he delivered to the court. Throughout his detailed decision, Horkins pointed to problems with the credibility of all three of the complainants and noted things such as the “suppression of evidence” and “concern with the reliability” of witnesses. Read full decision

The judge said the presumption of innocence is a fundamental right of the accused and stressed that the Crown has to establish proof beyond a reasonable doubt.

But in this matter, he told the court: "I have no hesitation in concluding that the quality of the evidence in this case is incapable of displacing the presumption of innocence. The evidence fails to prove the allegations beyond a reasonable doubt."

The judge acquitted Ghomeshi on all charges. 

Rosen, partner at Rosen Naster LLP, explains that sexual assault cases often turn on the credibility or believability of the complainants because of the intimacy of the alleged interaction.

Ghomeshi did not testify at his trial, so Rosen says the case came down to “the assertions made by the complainants and whether they were believed and whether their evidence was sufficiently credible to find guilt beyond a reasonable doubt." 

Rosen believes the key pieces of the case that led to the acquittals were the inconsistencies in the complainants’ testimony, emails sent to the accused after the alleged assaults were to have taken place, Facebook postings and the delay in reporting these incidents at all.

Further, the “strong evidence of collusion” between the complainants, in Rosen’s opinion, raised in cross-examination went a long way toward an acquittal.

He notes there wasn’t anything extraordinary about this case beyond the widespread media coverage of it and public interest in the accused. In fact, he says these types of cases, even with multiple complainants, are frequently heard in the courts.

“I would say a large percentage of cases wind up in convictions,” he says.

And he says calls made during and after the Ghomeshi trial to change the rules around complainants in sexual assault cases wouldn’t have been able to address the problems in the testimony of the complainants here.

“The problem in the Ghomeshi matter was the failure of the complainants to be completely honest with every aspect of their relationship with the accused,” he says. “In these cases, because of the intimate nature of the relationship, the complainant must be completely honest and open about everything — the good, the bad and the ugly. What happened in this case was that they held back things and never mentioned things and that caused them significant problems when they testified.”

Rosen says the Crown was “bound to proceed” in this case because of the public interest.

“Here you had three complainants who wanted their day in court: they wanted to make their assertions under oath and leave it to the court to decide what to do,” he says. “I don’t fault the prosecution at all for proceeding, especially given the profile of the case.” 

Rosen also notes that contrary to some negative media reports, Ghomeshi’s lawyer, Marie Heinen, is “a highly talented professional and her conduct in the case was in the best traditions of the bar. 

“She conducted her cross-examinations in a calm, organized and efficient way and brought out the weaknesses in the Crown's case, which is her job,” he says. 

Rosen says the outcome in the Ghomeshi matter is an important one. 

“One of the most precious things that we have in a free and democratic society is our freedom and when the state seeks to take away somebody’s freedom then it has to be done on evidence that convinces beyond reasonable doubt and nothing less,” he says.

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