Criminal Law

Complainant's credibility under the microscope at Ghomeshi trial: Presser

By Jill Presser

Defence counsel Marie Henein has embarked on a full-scale challenge to the first complainant’s credibility in the Jian Ghomeshi trial. She took the stand on day one and finished her testimony on day two.

A witness’s credibility is always important in a criminal trial, but never more so than when the witness is the complainant in a sexual assault trial. The prosecution of sex crimes often involves no “hard” evidence — no physical evidence, no evidence other than the word of the complainant. The complainant’s testimony is her own story but it is also often the only evidence implicating the accused.

Accused persons in Canada are constitutionally entitled to be presumed innocent until proven guilty beyond a reasonable doubt. This means that, unless the Crown can adduce credible and reliable evidence that convinces the judge beyond a reasonable doubt of guilt for the offence charged, the accused must be acquitted.

Credibility matters because the evidence of a non-credible complainant may not be able to satisfy the judge of guilt beyond a reasonable doubt. Inconsistent or implausible evidence may point to the fact that a complainant is unreliable. Maybe her memory is too fallible? Maybe she simply can’t remember what really happened? Maybe she was mistaken about what happened? Or, of even greater concern, maybe an inconsistent — and therefore incredible — witness can’t keep her story straight because she is lying?

On day one of the trial, defence counsel Marie Henein began her cross-examination of the first complainant. Henein identified a number of inconsistencies and improbabilities in the complainant’s story. Had the woman been wearing extensions in her hair at the time she said Ghomeshi pulled her hair? The woman’s position on this point had apparently changed at least three times. As a matter of logic and common sense, a hair pull of such strength and violence as the witness testified to would likely have pulled hair extensions off.

When this suggestion was put to the witness, she denied her earlier statements to police that she had been wearing hair extensions at the time. The woman’s story has changed on a number of other details too: Were she and Ghomeshi kissing when she says he first pulled her hair in the car? Did he smash her head up against the window at that time? And the woman’s story may not accord with objectively verifiable facts: was Ghomeshi really driving a VW beetle at the relevant time as she had earlier testified he was?

On day two, the complainant’s credibility was dealt a further serious blow.

Henein confronted her with playful emails she sent to Ghomeshi after the alleged offences. These emails enclosed a picture of the complainant in a bikini and invited further contact between the complainant and the man she said had already assaulted her. On their face, these emails put the lie to the complainant’s earlier evidence that she never had contact with Ghomeshi, or listened to his show, after the assaults.

But the complainant had an explanation. She said she did write the emails and sent them, revealing photo and all, to “bait” Ghomeshi — to entice him into to talking to her further about the assaults.

The complainant’s point seems to be that her outreach to Ghomeshi did not prove that she wasn’t assaulted by him. Instead, she explains that she contacted him because she was assaulted and wanted to talk to him about that. She needed a way to get him to engage with her. Surely we can all understand a need for closure, or at least a desire for understanding as to what had happened and why?

What is left unanswered by the complainant is why — if she knew she had emailed Ghomeshi, and she knew why she did so — she told the police and the court otherwise? Although it is early in this trial yet, the reasonable objective observer might be tempted already to ask why it is that this complainant can’t seem to keep her story straight.

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