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Unclear if Ghomeshi allegations to be presented as 'similar fact'

“Similar fact" evidence is a strategy that can work, but the Crown in the Jian Ghomeshi case may not pursue this approach even though the complainants' stories are alike, Toronto criminal lawyer John Rosen tells the Toronto Star. CBC

As Rosen, partner at Rosen Naster LLP, explains, Crown attorneys prosecuting sexual assault cases often present numerous individual allegations that resemble each other in the hope that a judge will determine they represent “similar fact” evidence.

“Absent evidence of collusion, you start to wonder if they are telling the same story because the accused is doing it,” says Rosen, who is not involved in the Ghomeshi case, but was asked by the Star to comment on the process in this type of criminal trial.

As the Star notes, it is still unclear whether the three women testifying that Ghomeshi sexually assaulted them between 2002 and 2003 will be presented as similar fact cases, or as individual, separate cases.

Ghomeshi has pleaded not guilty to the charges.

Rosen tells the Star that in a trial with multiple complainants, after they have told their stories under oath, the judge may be asked by the Crown to make a ruling on whether they are “similar fact” cases. If the judge rules they are, “that lends corroboration to the complainants,” says Rosen.

While an accused does not have to testify, Rosen says that the presentation of three individual cases may encourage Ghomeshi to present his side of the story.

He explains that the “Supreme Court of Canada has said that where you have a complainant who comes forward and testifies and there is no countervailing story coming from the defence, then the trial judge has to look at the credibility of the complainant.”

If there is no testimony from the accused, and “the trial judge accepts the credibility of the complainant, then it’s a downward slide to conviction.”

In a sexual assault case with no additional evidence, Rosen tells the Star that it often comes down to who is believed.

“It’s an intimate event. Two people, where nobody else is around. Those two really know what happened.”

Also, Rosen explains that it can sometimes be in the best interest of the accused to testify, particularly if it appears the trial judge is accepting the credibility of the complainants.

“The accused testifies and says, ‘No, no, that didn’t happen, let me tell you what happened.’ Then the trial judge has to look at the accused’s evidence and say, ‘Do I believe him? If so, I have to acquit.’”

Even if the accused’s evidence raises a reasonable doubt, the judge must acquit, Rosen says.

In terms of how the court deals with historical cases, Rosen says courts are no longer “supposed to consider when the complaint was made.”

“Now we understand, as a more sophisticated society, that women have many reasons why they do not come forward: some are ashamed, some don’t want to go through the process, some blame themselves. Courts have to be cognizant of that,” he tells the Star.

After the trial started, Rosen also spoke to the Star about defence lawyer Marie Henein's cross-examination of the first complainant. Read here

Rosen also appeared in various other media throughout the trial. 680 News Hamilton Spectator CBC

To Read More John Rosen Posts Click Here
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