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 John Rosen, one of Canada’s leading criminal defence lawyers.
Rosen, a criminal lawyer for 46 years, has no involvement in the case but was asked by the Toronto Star to comment on the process of a criminal trial of this kind.
What's unclear is whether the three complainants in the Jian Ghomeshi trial will be presented as similar fact cases, or whether they will be presented as individual, and separate, cases.
Rosen said that "similar fact" evidence is a strategy that can work, but even though the stories from the Ghomeshi complainants seem similar, the Crown may not pursue that strategy.
The trial of Jian Ghomeshi begins Monday at Old City Hall court in Toronto. Three women will testify that he sexually assaulted them (in one case, a charge of choking-overcome resistance has been added) between 2002 and 2003. The Star detailed these cases Saturday.
Ghomeshi has pleaded not guilty to the charges. The former Q host has said that all of his sexual activities with women have been entirely “consensual,” and in a Facebook post he blamed a jilted lover (who is not part of the proceedings) for spreading lies about him.
Rosen explained 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, Rosen said “that lends corroboration to the complainants.”
While an accused does not have to testify, Rosen said the presentation of three individual cases may tip the scales and encourage Ghomeshi to present his side of the story.
That’s because, Rosen explained, 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.” Rosen said that 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, particularly one with no additional evidence, Rosen said it often comes down to which side is believed.
“It’s an intimate event. Two people, where nobody else is around. Those two really know what happened.”
He said 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.
That’s when a defence lawyer may put the client on the stand.
“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 just raises a reasonable doubt, the judge must acquit,” Rosen said.
Rosen has successfully defended numerous clients on murder and other serious charges, including a case where a woman was charged with murder in the death of her infant daughter, based on evidence from disgraced pathologist Dr. Charles Smith. Rosen was also the lawyer who defended serial killer Paul Bernardo, who was convicted of murdering two teenage schoolgirls.
The Star also asked Rosen his thoughts on how the court deals with historical cases, like this one from 2002 and 2003, where a complaint was not made until 2014.
Rosen said 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.”
Still, the course of conduct of the complainant after an alleged assault can be a factor. Rosen said that the Crown will often call a witness to state that the victim told the story soon after the alleged attack.
In one of the Ghomeshi cases, a complainant did speak to a girlfriend later that evening.
Rosen said that it is unlikely that other information related to Ghomeshi — such as why the CBC fired him, or complaints to the media about his conduct by other women — will enter the trial as evidence. He said the Crown attorney would have to somehow link it to the cases at trial, and that would be difficult to do.
He noted that the defence is allowed to call alibi witnesses for Ghomeshi, someone to say the former CBC host was elsewhere at the time of the alleged incident.
Ghomeshi’s lawyer is Marie Henein, a veteran trial lawyer who first learned the ropes with the late litigation legend Eddie Greenspan. She has dealt with sex assault cases before. She successfully defended junior hockey coach David Frost, who was found not guilty in 2008 on all four counts of sexual exploitation against two former players. She was also part of the legal team defending former Nova Scotia premier Gerald Regan, who was acquitted in 1998 of a string of historic sexual assault charges.