What to expect from the Jian Ghomeshi trial next week

Here, the big issues, questions and tactics expected to arise during the proceedings.

Former CBC Radio star Jian Ghomeshi has spent more than a year on trial in the court of public opinion. On Monday, his trial in the court of law will begin in downtown Toronto, blocks from where he helped make Q CBC Radio’s flagship show. The 48-year-old, out on $100,000 bail and living with his mother as a condition of his release, pleaded not-guilty to four sexual assault charges and one count of overcoming resistance by choking. He will appear in court again in June for a second trial, dealing with one more count of sexual assault.

The Court, presided over by Justice William Horkins (there will be no jury), will hear from three female complainants, including Trailer Park Boys actress Lucy DeCoutere, who opted out of a publication ban on her name. Between the public’s interest in Ghomeshi and defence lawyer Marie Henein’s famous take-no-prisoners style of litigation, the trial is sure to generate high courtroom drama and wall-to-wall media coverage.

But these proceedings will also provide a case study in how a high-profile sexual assault trial plays out in Canada in the era of social media and how sexual-assault complainants navigate a system in which they often feel as if they’re the ones on trial.

Related: A guide to who’s who at the Jian Ghomeshi trial

Chatelaine will be in court to report on the proceedings. (Bookmark this page to follow our ongoing coverage.) To begin with, we asked legal experts what they think will be the big issues and questions expected to arise during the trial. As one lawyer put it: “Expect the unexpected.”

Was there consent?

Consent — and whether it was given — will be a major theme of the trial, particularly because of Ghomeshi’s Oct. 26, 2014 Facebook post, crafted with the help of public relations firm Navigator, in which he claimed the rough sex he engaged in with his partners was consensual.

Why didn’t the complainants go to the police sooner?

At least two of the complainants — DeCoutere and another whose name is protected by a publication ban — shared their stories with the media before filing a complaint with the Toronto Police. DeCoutere said Ghomeshi choked and slapped her at his apartment at the end of a date in 2003 — 11 years prior. The question will be: What took her so long? The passage of time could help the defence plant doubt as to whether an assault took place and whether the complainant is remembering the events accurately.

Are the witnesses credible?

“In a case like this, credibility is the central issue,” says Joseph A. Neuberger, a veteran criminal defence lawyer in Toronto who has defended more than 800 sexual assault cases. Expect a lot of time spent on whether the complainants were drinking, thus raising doubt about the reliability of their memory. There will likely be close scrutiny as to why DeCoutere continued talking with Ghomeshi after the alleged assault.

Are the complainants doing this for attention?

Enter the myth of the fame whore — the notion that complainants make accusations against prominent people for attention. DeCoutere is particularly susceptible to this kind of criticism from the defence, says former Crown prosecutor Sandy Garossino, because she went public with her name and identity. “The defence will have to really haul out the big guns and basically say, ‘You’re here looking for attention, you saw your chance, none of these things happened’ and really attack, openly attack the complainant. That’s a risky tactic.”

Was there collusion?

DeCoutere has said publicly that she and the other complainants have spoken with one another — a detail that doesn’t bode well for the Crown. “[DeCoutere] became a point person for others who wanted to tell their story but couldn’t bring themselves to do it publicly,” Leah McLaren wrote in a Toronto Life cover story about Ghomeshi. “The way she described it to me, she co-ordinated a covert network of women who have spent the last seven months sharing their assault stories with each other.” That passage will undoubtedly come up in trial. “I think the defence is going to really make hay about this,” Garossino says.

Can the Crown prove there was a pattern of violence?

To convince the judge that Ghomeshi serially abused women he dated, the prosecution may call witnesses who have not filed charges against him, Garossino says. The defence would likely argue against the use of this kind of evidence. Whatever evidence the Crown chooses to lead with, however, will greatly influence the trial moving forward.

Will Ghomeshi testify?

It’s unlikely: Most accused decide against it. But if there is a chance the judge finds the witnesses credible and the prosecution convincing, the defence may see a benefit in bringing Ghomeshi up on the stand, Garossino says. But, she adds, he will likely be under intense pressure to do so. “The number one objective of the defence is to completely undermine the credibility of the complainant. If that doesn’t happen, I would expect to see Ghomeshi in the stand to attempt to create that doubt [in the judge’s mind] by his own account of what happened.”

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