Day one of the Jian Ghomeshi criminal trial had all the hallmarks of a much-anticipated “theatrical” experience, as it has been billed for months. Media lined up at the door of Toronto’s Old City Hall as if clamouring for rush seats. The first 30 allowed in the courtroom—a wonky hybrid of magisterial wood-panelled place of justice and ‘60s office building with fluorescents overhead—were given tickets for re-entry, a first, according to courthouse staff. Television units and photographers camped outside. A ripple went through the crowd as Ghomeshi and his lawyers, Marie Henein and Danielle Robitaille, entered the courtroom. The trio, coordinated in 50 shades of black, down to similarly coiffed hair, lent sartorial drama to the proceedings, just as Henein and Robitaille’s five-inch stilettos foreshadowed the legal knife play to come.
Anyone expecting a cathartic or enjoyable experience, however, would have demanded a refund. Because we’ve seen this play before in sexual violence trials, only not as high-wattage ones. It’s a familiar plot: the evisceration of the witness, the questioning of details adjacent to but not directly associated with the charge. The primary plot lines revolved around a yellow Volkswagen bug, Google searches, and hair extensions. Everybody played their role and followed the script. Ontario Court Justice William B. Horkins set a crisp tone at the outset, making it clear that despite the hoopla surrounding the case, “my focus is on what happens inside this courtroom.” He quickly quashed a motion brought forward by complainants’ lawyers that court documents be redacted lest they end up on media websites and compromise the women’s privacy. Publications bans in place provided that protection, the judge ruled: “The default position is transparency.”
Crown prosecutor Michael Callaghan, an amiable, methodical man, questioned the first of the three female witnesses in a trial that sees Ghomeshi tried for four counts of sexual assault and one count of “overcoming resistance by choking.” The witness, whose identity is protected by a publication ban, testified that she was sexually assaulted on two occasions by Ghomeshi, whom she met while she was working as a waiter at a CBC Christmas party in 2002.
It’s around here that the grand dramatic conceit falls down. For weeks before the trial, observers had quipped about the great theatre to come. But this is what the reality of sexual assault cases looks like: The witness, who appeared poised on the stand, described herself as belonging to the Toronto arts community, who was working part-time as a make-up artist and on film sets. Ghomeshi was “flirtatious” and “charming,” she said, and she “flirted” back. He invited her to attend a taping of >play, a CBC Newsworld program he then hosted. At the taping, the flirting continued. Afterward, she and Ghomeshi had a drink at a nearby pub (he had a Heineken, she a ginger ale), and Ghomeshi offered to drive her to her car. Ghomeshi impressed her as “charismatic” and “the perfect gentleman,” she said. She found his car, which she recalled being as a yellow VW Bug, reassuring, she said; it reminded her of a “’60s Disney movie … It made me feel safe.” In the car, Ghomeshi “playfully” tried to unbutton her blouse, she testified. “He said, ‘Come on.’ I said, ‘No.’ ” They kissed, before Ghomeshi suddenly yanked her head back, pulling her hair. It was “painful and sudden,” she testified. “Did you say anything?” Callaghan asked. “I don’t remember,” she answered; she was too busy “absorbing the change in dynamics” before Ghomeshi switched back to “nice guy.” She participated in the kiss, she said, but was confused: “I wondered if he meant to hurt me.”
She’d attend >play tapings two more times; on the third, during a snow storm, she went with a girlfriend. Ghomeshi went out with the pair after that show, and invited the witness back to his house, she testified; they kissed, she said, before he suddenly pulled her head down and punched her three times with what “felt like a closed fist.” “My ears were ringing and I thought I was going to faint,” she said. She was crying, she said. Ghomeshi called her a cab: “He threw me out like trash.”
“Did you say ‘What the heck?’ ” Callaghan asked. “I was too stunned,” she answered.
Ghomeshi’s rising fame as the host of Q made her “relive the violence over and over,” she said. “Why did you wait [until 2014] to report?” the Crown asked. Until Ghomeshi was fired from the CBC and the women came forward, “I thought I was only one,” the complainant said. Callaghan asked whether she’d been in contact with the other complainants. She spoke once to Lucy DeCoutere on the phone, she said. When asked why the witness had submitted to media interviews with outlets that included the Toronto Star and CBC before filing charges with police, the witness said she “thought it was far too late”: “I thought it was too late the minute I went home.” Toronto Police Chief Bill Blair’s press conference encouraging women to come forward in 2014 gave her confidence.
Throughout, a sombre Ghomeshi betrayed no emotion, other than mouthing “Hi, mom” to his mother sitting in the front row when he entered the courtroom. He scribbled notes on a pad, and whispered occasionally with Henein while watching her do what she does so masterfully: fillet the complainant as if wielding a Gyuto knife.
Henein began by brandishing a metaphorical gun as if in Act 1 of a Chekhov play, preparing the audience for it to go off in Act 3. Only it wasn’t one pistol, but many. She reminded the witness that police had cautioned her it was against the law to file false offence, to fabricate evidence, to add or correct evidence. She focused on the fact the witness communicated with police via dozens of emails after her 25-minute police interview, which would serve to provide inconsistencies Henein zeroed in on. Throughout, the witness refused to wilt, often talking back and disagreeing while her frustration mounted.
Henein’s task as a defence lawyer is to build reasonable doubt. She stacked the deck. She dismantled the witness’s claim she’d been separated from her husband when she saw Ghomeshi; the witness contended she was separated from her husband because they were living on separate floors of the same house. She noted that the witness googled “how to contact the media” but not “how to contact police.” She took digs at the witness’s faltering career, which included working as a “cater waiter,” and about her being “smitten” with Ghomeshi. The fact that the witness changed her statement to police that she was wearing hair extensions the night she went out with Ghomeshi provided fodder for a 15-minute discussion on hair-extensions, mercifully interrupted by the Crown. The judge ruled the discussion “fair.”
Henein also artfully dealt with issues of consent. She conflated the “kissing and hair-pulling part as one incident,” noting the witness said the kissing was “sensual.” She claimed Ghomeshi didn’t own a yellow “Love Bug” as claimed; he drove a GTI. (Stay tuned for more on this one.) Again and again, she hammered the witness’s recollection, using terms like “false memory.” When the witness asked to explain herself more fully, as she did repeatedly, Henein cut her off and asked not to be interrupted. Much time was spent discussing whether the witness’s head had been yanked toward the car seat or window. The coup de grace, however, was the divergence in what the witness told the Crown and what she told media about the sequence of events related to hair-pulling. She’d omitted the kissing from her account to the CBC and, apparently, the Toronto Star. (The witness said the Star had “twisted” her words. When the witness responded, “I was under pressure,” Henein shot back: “It was a pressure you chose.”)
The defence asked the court to review the witness’s video interview with police, but a technological glitch prevented it and court was adjourned. The courtroom emptied as everyone filed out. The stage had been set.