The judge in the Jian Ghomeshi trial ruled Tuesday that he would allow the Crown to present a fourth witness.
Justice William Horkins said the safest course was to hear the witness’s evidence then decide what potential “probative value” it had.
He added that he was aware of concerns of using this evidence improperly.
The fourth witness, whose name is covered by a publication ban, cannot travel to the court because of weather issues and cannot be broadcast in the court via Skype. The judge ruled that a copy of her statement and emails will be filed instead.
The court adjourned at midday, and will reconvene at 10 a.m. Wednesday.
Defence counsel Danielle Robitaille had earlier argued against the Crown’s request to call the witness, a friend of complainant Lucy DeCoutere, who the prosecution says was informed of Ghomeshi’s alleged assault on DeCoutere 10 years ago.
Crown prosecutor Michael Callaghan said the witness’s testimony would rebut allegations of collusion stemming from messages between DeCoutere and the third complainant, whose name is under publication ban.
But Robitaille said the defence will not be arguing recent fabrication, and the testimony of her friend won’t change the contradictions it has pointed out between her testimony and what she in emails and letters around the time of the alleged assault.
She also said that if the witness does not testify, the defence would be ready to close its case tomorrow. That statement suggests – although Robitaille did not say it explicitly – that the defence does not intend to call Ghomeshi as a witness.
Robitaille said the defence doesn’t know when DeCoutere began making up the allegations and doesn’t care, what matters is that she apparently did.
Robitaille also noted that the witness’s account did not include slapping. DeCoutere testified Ghomeshi slapped her three times.
She argued that the witness would not help Horkins grapple with problems in DeCoutere’s evidence – not just lying under oath, but contemporaneous statements.
Horkins responded that he, unlike a jury, wouldn’t be confused by the evidence, and may need to hear it to decide if it is relevant.
Callaghan said testimony that DeCoutere told someone about the alleged assault 10 years ago was relevant to the judge’s assessment of her credibility, as well as to his assessment of the fabrication allegations.
Ghomeshi, 48, has pleaded not guilty to four counts of sexual assault, and one count of overcome resistance by choking. He acknowledged in 2014 that he engaged in rough sex acts, but said it was consensual.
– With files from Kevin Donovan