We Asked Lawyers if the Prosecution in the Ghomeshi Trial is Performing as Badly as It Seems

Those watching Jian Ghomeshi's sex assault trial play out have seen a meticulous display of lawyering from his attorney, Marie Henein.

In her cross-examinations of the three complainants who allege Ghomeshi slapped, choked, and punched them while on dates, Henein produced emails, texts, and letters that showed the witnesses pursued sexual and romantic encounters with Ghomeshi after they say they were abused.

Experts have said it's not unnatural for an alleged victim to seek out her attacker after being abused; rather, what makes these revelations most damaging to the witnesses' credibility is that they were previously unreported to the police and the Crown.

Many are now questioning the roles—and competence—of Crown counsel Michael Callaghan and the cops in this investigation. Why didn't they better prepare the witnesses that old exchanges with Ghomeshi were fair game for his legal team? Why didn't they ask for access to Ghomeshi's emails themselves? Why have they been so blindsided by these revelations?

As it turns out, there might be little they could've done.

"The witnesses… were not completely truthful with respect to various things," Michael Lacy, a partner at the Toronto-based Criminal Law Group, told VICE.

Lacy explained the Crown isn't involved in the investigative stage of the case.

Detectives would have listened to the women's stories—dictated under oath—before deciding to lay charges. Police would've been able to request a search warrant to access Ghomeshi's emails, but because the women claimed they had no further correspondences with Ghomeshi after the alleged assaults took place, said Lacy, "Why would that cause the police to wonder or investigate or find out if there actually were further communications?"

Mike Huot, a former Crown prosecutor based out of Vancouver, said in order to get that kind of a court order, the police likely would need something to go on.

"You'd have to be able to establish some basis for thinking that [Ghomeshi] would have that material," he said, adding if the alleged assaults had taken place more recently and the complainants indicated there was digital correspondence, police "could probably get a search warrant and look at his computer or go to a service provider or look at the complainants' emails."

(The defence is not legally obliged to share documents provided by Ghomeshi or through its own investigation that could help its case.)

As for preparing the witnesses better, Lacy said Callaghan isn't their "advocate," but an administer of justice. He likely told the women they would be crossed for inconsistencies based on things like their media interviews, according to Lacy, who questioned, "How could the Crown have prepared these witnesses to not have their credibility undermined as much as it has been, other than telling them they have to be completely truthful?"

Had the witnesses told police, the Crown or their own lawyers (all three obtained legal counsel) about the exchanges at the outset, Lacy expects someone would've requested a more thorough investigation.

But Ottawa-based criminal defence lawyer Michael Spratt said the police probably could have been more thorough.

"Quite often we see cases of tunnel vision or of police not solving things that may be of some concern. Having said that, a lot of this information seems to be information that was known to the complainants and not known to the police," he said.

Spratt said it's difficult to balance getting complainants to disclose relevant information with potentially deterring them by requiring that they lay bare all of their email communications when reporting a crime. Increasing access to witness support services might be one solution, he noted.

The witnesses in the Ghomeshi trial, two of whom are protected by a publication ban, cited memory issues and a misunderstanding of the court process to explain inconsistencies in their testimony.

The first, who omitted an email exchange in which she sent Ghomeshi a photo of herself in a bikini told the court she'd forgotten sending it.

Lucy DeCoutere said she no longer had access to the email account she'd used to correspond with Ghomeshi and that she'd forgotten the contents of the emails, along with the existence of a letter she wrote to him that said "I love your hands."

In Monday's testimony, the third witness admitted she'd deliberately misled police by not telling them how she'd given Ghomeshi a handjob after he allegedly smothered her and squeezed her neck. But she also said she didn't think the sexual encounter was relevant to the assault.

What Justice William Horkins makes of these explanations remains to be seen. But Lacy told VICE if the case wasn't the most high profile trial in recent Canadian history, "I'm not so sure every Crown would have continued the prosecution."

Callaghan has a duty to continually assess the prospect of getting a conviction, he explained.

"This might be the type of case where the Crown, after listening to the witnesses and listening to the cross-examination of these witnesses being confronted the way they have been, might be reassessing whether they even continue the prosecution."

He said "external pressures" are likely persuading Callaghan to let the trial continue.

"It's working to his disadvantage, arguably."

But Huot said it's not that "cut and dry that the towel should be thrown in."

He pointed out that there are always going to be significant inconsistencies in testimony about events that took place years ago. But, Ghomeshi is being accused of "very strange behaviour" by all three women.

Huot said he'd want to know what opportunity there was for collusion. Henein, in court Monday, painted the 5,000 messages exchanged between DeCoutere and the third witness, in which they discussed the allegations against Ghomeshi, as evidence of collusion.

Callaghan has successfully argued for bringing a fourth witness to court Wednesday to corroborate DeCoutere's testimony about the alleged assault.

As for why he hasn't entered an expert on abuse and trauma, who could potentially explain why the complainants pursued Ghomeshi after he allegedly beat them, Lacy said that kind of a witness probably wouldn't be admissible.

An expert on abuse would be much more likely to take the stand in a complicated case involving a long-term domestic relationship, he said, adding Judge Horkins "is not going to necessarily be critical of the complainants for not going to the police."

The trial continues Wednesday.

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