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The Ghomeshi trial: Why didn't the Crown call expert witnesses?

Expert witnesses are rarely called in sexual assault trials — the assumption being that the judge doesn't need an expert to explain how a survivor might behave.

Over seven days in court, Regina vs. Jian Ghomeshi heard from just four witnesses — three of whom are the complainants in the case. (The other is a friend and colleague of complainant Lucy DeCoutere.) That came as a surprise to some observers, who wondered — especially after defence lawyer Marie Henein’s pointed attacks — why expert witnesses hadn’t been called to explain why an assault survivor would reach out to an abuser, why she might withhold details from the police, or how trauma can influence memory.

The absence of expert witnesses in sexual assault cases, however, isn’t unusual: Sunny Marriner, executive director of the Ottawa Rape Crisis Centre, says she has yet to see an expert called in a sexual assault trial, but she’s also yet to see a sexual assault case go before a jury. That echoes what many experts told Chatelaine: That in judge-only trials, the Crown doesn’t believe they need to educate a justice about how victims experience traumas (and perhaps don’t want to insult judges by trying).

Toronto criminal lawyer Breese Davies explains that “to call expert evidence in a criminal case, it must relate to the specific facts of the case and to an issue that is likely outside the experience and knowledge of the judge. In this case, the decision by the Crown not to call evidence may indicate they are confident that Justice [William] Horkins understands that memories created in traumatic circumstances may be incomplete. Most justices do. They also understand that there is no ‘one way’ or ‘expected way’ for people to respond to trauma. Judges of the Ontario Court of Justice routinely hear sexual assault cases and domestic assault cases where the conduct of the complainant after the fact is raised as an issue. [Horkins] would be alive to the issues.”

Marriner would disagree. “Many Crowns have said to complainants when I’m in the room that judges will ‘see through’ defence tactics. I’m not at all sure what this assumption is based on. I have never seen a conviction myself, and the judges, in their reasons, have all cited evidence led by the defence that I would think could have been easily addressed by an expert — and wouldn’t have appeared exculpatory if properly understood in the context of ‘normal’ survivor behaviour. I believe it’s absolutely critical that Crowns call experts.”

Related:
The Ghomeshi trial: Day 7
How did Ghomeshi’s defence get hold of 5,000 messages between complainants?
The Ghomeshi trial: Day 6