Jian Ghomeshi’s trial for sexual assault and choking may end this week, as both the Crown and defence are expected to close their cases with little further evidence.
The defence has proclaimed they are ready to proceed to closing arguments, meaning Ghomeshi will not be testifying.
The presiding judge ruled Tuesday that the Crown could call its last witness, to rebut the defence claim that Lucy DeCoutere recently fabricated her allegations that Ghomeshi choked her and slapped her three times in 2003.
However, due to a snowstorm in Halifax preventing the witness from travelling, the police statement given by the witness and messages between her and DeCoutere will be filed with the court instead of giving her testimony in person.
Defence counsel Danielle Robitaille had argued against the Crown’s request to call the witness, a friend of DeCoutere’s, who the prosecution says was informed of Ghomeshi’s alleged assault on DeCoutere 10 years ago.
Robitaille said the defence will not be arguing that DeCoutere recently fabricated the allegations, and the testimony of her friend won’t change the contradictions it has pointed out between her testimony and what she wrote in emails and letters around the time of the alleged assault.
“It was a bald allegation of fabrication,” Robitaille said of the defence position. “The defence doesn’t know when it is Ms DeCoutere began making up these stories about Mr. Ghomeshi, and frankly we don’t care.”
Robitaille also produced a Facebook conversation between DeCoutere and her friend from 11 days prior to the friend’s police statement that she says suggest the friend’s police statement “lacks hallmarks of independence.”
DeCoutere says in the message: “Guess what, the Toronto cops want your number.”
Friend: “Just to corroborate?”
DeCoutere: “I told them that I told you what happened ages ago. It makes me look like I am not a copycat reporter.”
Justice William Horkins said the safest course was to hear the witness’s evidence, then decide what potential “probative value” it had. He said that, while the defence’s position with DeCoutere is that the alleged sexual assault and choking did not occur, they also challenged her motivations for coming forward to police and media in 2014, suggesting she was seeking fame and attention.
Crown prosecutor Michael Callaghan noted the defence spent several minutes in cross-examination accusing DeCoutere of “reveling in the attention,” with defence lawyer Marie Henein pointing out that DeCoutere’s Twitter followers “skyrocketed” after she shared her allegations with the media under her own name.
Callaghan said the friend’s testimony could assist the judge in assessing DeCoutere’s credibility. It could also help the Crown challenge defence allegations of collusion stemming from messages between DeCoutere and the third complainant, whose name is under publication ban, he said.
In his decision, Horkins said that he was aware of concerns of using this evidence improperly, noting that prior statements made by a complainant cannot be used to corroborate her 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.
The trial resumes Wednesday morning, with the Crown expecting to file an agreed statement of facts to the court. Closing statements are expected this week.
– With files from Kevin Donovan