Over the duration of this trial, defence lawyer Marie Henein has hinged her cross-examinations on a number of emails that the complainants forgot they sent to Jian Ghomeshi. But on Monday, she pointed to thousands of private messages that the third complainant exchanged with second complainant Lucy DeCoutere. How did Henein get her hands on those?
The answer: A third party records application, which any lawyer can make (though it’s mostly defence lawyers who do) to access private information—like personal records and correspondence—so long as that information is germane to their case. “In the olden days, it was much easier to get counselling or therapy records,” says Toronto defence lawyer John Navarrete of Neuberger & Partners LLP. That changed after a 1992 sexual assault case called Regina vs. Mills. Now, if you want anything from medical records to a Facebook message thread (which Henein is believed to have accessed here), you need to establish that the materials exist and that they are relevant. “It can’t just be a fishing expedition,” Navarette says.
It’s not easy to prove relevance, he adds, especially when you’re not sure what’s contained in the material. (And, strategically, third party records can be risky, since they’re also disclosed to the Crown and “will show your hand or worse — it may confirm the complainants’ side of the story,” says Navarette.) But Henein was able to prove relevance, which leads Navarette to believe “maybe she has a few of [the messages] and was able to establish, ‘Hey, this communication has been ongoing.’”
And that ongoing communication is crucial to supporting a major plank of Henein’s defence: that two complainants colluded with each other. “Evidence of similar incidents of sexual assault on strangers is considered highly reliable, because you have different people who don’t know each other saying the same thing,” Naverrete explains. “How would that happen?” In this instance, Henein would argue that it happened because the complainants traded notes.
It’s not common for sexual assault complainants in the same case to collude with one another, Navarette says. But a case is much stronger if the complainants have never talked. “When they’re talking, it taints the evidence. It may no longer be your recollection of what happened — it becomes a mix up of everybody else’s.” Not everything is off-limits, he adds: “If complainants want to talk about the Toronto Maple Leafs before the trial, that’s fine. But they can’t talk about the case.”