After the DeCoutere Disaster, the Crown called to the witness box a woman publicly identified only as complaint #3. If the Crown thought she would bring their case back from the dead, they were sorely mistaken. She managed not only to impeach herself but to dump even more calumny on to DeCoutere. The ever resourceful Marie Henein was able through this witness to discover and wield the most lethal of modern weapons – emails.

The Direct Exam

She started by testifying she met Ghomeshi in July 2003, at a dance festival at a Toronto park where she was performing. She is a dancer. Some time soon after she went on a dinner date with Ghomeshi. One or two days later, after one of her performances, she walked with Ghomeshi to a nearby baseball diamond, sat on a bench, and began “making out” with him.
She said while they were kissing, she felt his hand on her shoulder, his teeth on her neck, and then his hands around her neck, squeezing it.

“I just felt his hands around my neck, all around my neck.”
His hand went over her mouth and was “sort of smothering me.” It made it difficult for her to breathe.

Despite these assaults she said sometime soon after, she met Ghomeshi again for a date, went to a bar and dinner with him, and she invited Ghomeshi back to her place.

She disclosed to the police just days ago during DeCoutre’s testimony that Ghomeshi had gone back to her home after a dinner date where they “messed around” and she masturbated him. The woman had not mentioned those details in her initial 2014 statement to police.

The woman told the prosecutor Callaghan that they had not discussed this type of behavior before and that she did not consent to it. She said neither said anything about the alleged assault and that at some point she got up, left and took a cab home.

The witness said she next saw Ghomeshi at a party, but the two got into an argument in his car when he started criticizing her best friend, telling the woman her friend was too controlling.

She said she got angry, got out of the car and told him to lose her number and not call her again.

The Cross-Examination

1. The Damning Emails:

Just hours after telling the court that she had never discussed details about her allegations with DeCoutere, Henein produced messages between the two that proved the contrary.

Henein brought out that between October 2014, when the allegations about Mr. Ghomeshi became public, and September 2015, the two women exchanged 5,000 email messages, some of which mapped out the strategy for the women to use in pursuing charges againsh Ghomeshi.

The sheer number of emails is damning. Witnesses are cautioned not to discuss their testimony with each other. Henein obviously wants the court to draw the conclusion the two of them were colluding.

Henein questioned her about the strategy she received from Ms. DeCoutere to pursue charges against Ghomeshi.

DeCoutere steered the woman to both a publicist and a lawyer who could navigate the media and the legal proceedings for her.

“I’ll do whatever I can to put this predator where he belongs.”

Henein read a number of the women’s exchanges into the record, including a few in which the women take delight in imagining Mr. Ghomeshi becoming fat, bald, and urinating on himself while awaiting trial.

“Time to sink the prick. Time to deal with this predator. Hope you get fat and go bald.”

And that was the least of their vicious, occasionally racist, discussion of the fallen CBC star, whom they sometimes called “the Arabian princess.”

Henein asks about the complainant’s relationship with Lucy DeCoutere.

In one of the messages exchanged in December, she said she was going to put a piece of jewelery on her when she was going to have to testify. The witness said she remembered that, but that she did not give her jewelry.

“Well, fuck, you’re … my hero,” she wrote, and texts her to say that she’s “leading the pack.” Meaning the mob generated by the publicity against Ghomeshi.

Henein asks the witness if she remember DeCoutere suggesting she speak to “our” publicist about this.

Henein asks whether the witness remembers writing to DeCoutere and saying she spoke with the publicist and was almost convinced to do an interview with CBC, but wanted to speak with her counsel first before doing the interview and going to police.

Later in November 2014 — before the witness went to police — DeCoutere wrote a message to the complainant saying that the publicist loved her.

In June 2015, she wrote to police saying that she would be using Gillian Tnasiw — the same lawyer as DeCoutere. DeCoutere had given her the name and the witness had met with the lawyer three times.

Henein now asks the witness if she remembers “checking in” with DeCoutere whenever she met with the Crown.

The witness replies that she doesn’t have a specific memory about that.

So, Henein approaches the witness box, with the messages between the two complainants in hand.

Henein points the witness to specific messages, in which the woman went into detail about how her meetings went with the prosecution.

Henein quoted snippets of conversations between the two women, explaining that in the lead-up to the trial, the woman would “report in” to DeCoutere after any significant exchange with detectives or the Crown.

“You now accept that you did, in fact, talk about the specific allegations,” Henein demanded after peppering the woman with questions.

“I did,” the woman replied.

“The other thing you talk about with Ms. DeCoutere is how much you hate Mr. Ghomeshi,” quoting messages in which the woman says to DeCoutere that she wants Ghomeshi to “pay” for what he’s done.

Henein then begins reading a message from the complainant to DeCoutere in which she said she hoped that he was developing a facial tic and peeing in his bed.

“Yup,” she said.

For those unfamiliar with the court process, witnesses are not supposed to discuss their statements or allegations before going to trial. Henein stopped short of acusing the two women of collusion, but the point was obvious. Not only did they discuss how to get Ghomeshi charged, but they put together a united front using the same lawyer and publicist. A line of questions I would have asked is why does an unnamed anonymous complainant need a publicist? And what was the publicist doing?

Another point is the unfairness inherent in the different treatment between the accuser and the defendant. The accuser does not have her name made public unless she waives the protection. The defendant does not have that right. Ghomeshi’s career is destroyed, he was fired from his job, and he will never get another job in the media no matter the verdict. He was subject to months of poisonous attacks in the press, radio and television. The stain will never wash out. Yet this witness, who perverted the course of justice, remains comfortably anonymous.

2. “I did not have sexual relations with that woman, Miss Lewinsky.” Bill Clinton 1/26/98

When she first made her accusation, the witness was asked by the sexual assault detectives if she and Ghomeshi had any sexual discussions and she denied it. Henein did not let this pass unnoticed.

Henein: “So, you had no sexual discussions but magically his penis appeared in your hands at your home?”

“No, there was no discussion, no.”

“It wasn’t sex. Intercourse is sex, not what I did.” Shades of Bill Clinton.

Henein attacked the witness for not telling police at previous under-oath interviews that in the days after the alleged assault in the park she had a sexual encounter with Ghomeshi at her home. The woman testified she gave Ghomeshi a “hand job” and afterward Ghomeshi fell asleep, and left her home shortly after. The woman disclosed the sexual encounter only the week before the trial and made a new statement to police. Henein called her on that.

Henein: “I’m going to suggest to you that the only reason you have finally told the truth is because you thought you were going to be caught out.”

The woman disagreed, saying she didn’t want the Crown to be blindsided by something she had omitted.

The witness said she contacted her lawyer days ago to let the Crown and police know she had more details to provide, because she figured it was going to come out and that “it has to be everything or nothing.”

Henein accused the woman of lying to police in her initial statement, pointing out that she told police then she would only be in a public setting with Ghomeshi after the alleged assault.

She had been told before her first statement to police, in December 2014, to tell “the truth, the whole truth, and nothing but the truth,” about her dealings with Mr. Ghomeshi.

Henein: “Do you agree that’s a lie there, under oath, to the police?”

Witness: “It was an omission.”

Henein: “You tell the police that the extent of it is we’re going to be in public, right? You do not say to them, ‘he did come over to my house, we were not in public,’ right?”

“Right,”

“That is a lie.”

“Sure,” she finally admits.

She only disclosed these details after she found out about the extensive cross-examination of DeCoutere. Despite the judge’s orders, the woman said she listened to a Ghomeshi news bulletin on CBC radio and chose to reveal several emails between her and the former CBC host to police and the masturbation event.

Asked to explain herself, the woman said that after the park bench incident, she did her best to be with Ghomeshi only in public. She described her decision to have him back to her home as “an absolute misjudgement … and one that a lot of women make.”

Henein shot back: “I don’t care about a lot of women.”

After the alleged assault on the park bench, she said she felt belittled by Ghomeshi at a bar when, prior to them going home together, he told a New York journalist “we are not seeing each other; we are just fucking.”

They left together in his car, but they had an argument about his comments, she said. Her last words to him before she got out of the car were: “You are fucking crazy. Lose my number! Don’t ever call me again!”

She left for Vancouver the following day and was surprised to receive a phone call from Ghomeshi asking how her flight was.

She says, at that point, whatever relationship they had was over and she could not believe he was calling again.

But the Court was presented with a number of emails the woman sent to Ghomeshi after these events, in 2004 and 2005. In one, she opens by saying:

“Hiya Princess … still wanna have that drink sometime.”

She asks him if he can “plug” an event she is involved in, and concludes, “still wanna have that drink sometime?”

The woman also said she didn’t tell police that she’d had a sexual encounter with Ghomeshi after the alleged assault because she was embarrassed.

“Do you accept that you were being deliberately misleading?” asked Ghomeshi’s lawyer, Marie Henein.

“Yes,” the woman replied.

3. Motive

Henein’s asks about “the game-changer,” the realization that Ghomeshi was “sick … and was trying to manipulate me and isolate me” after he began insulting the complainant’s best friend and telling her that he was controlling.

“It was a combination of things,” the witness said. “But that was the straw that broke the camel’s back.” she said.

4. The Untimely Disclosures

Henein then says that the witness actually invited the accused to another event.

The accused said it was just one email, one she found recently while going through her emails.

Henein stops the line of questioning and shifts gears, asking instead when and why the witness was looking at her correspondence with Ghomeshi.

The witness says that was a few days ago — and Henein interrupts to ask what prompted that decision.

“Curiosity,” the witness replies.

“Come on now,” Henein said.

Seriously,” she said. “I found one email.”

Now Henein reminds the witness of a conversation she had via email with DeCoutere, in which the lawyer says the witness said she was worried about what the defense might have as evidence.

“I wanted to know what they know,” she said. “Like on TV, they can go into cell phones, email … and dig.”

DeCoutere: “How much can they dig?”

Witness: “They have to put in an application for it,” she said. The woman then says that any application for communication and financial records would have to be disclosed to her — and that she could sit with a court-appointed lawyer and go over what could, and could not, be shown.

Henein then asks that the witness had a chance on Tuesday to review her statement — while sitting outside the court getting ready to testify.

She admitted despite that, she didn’t change anything in her police statement.

But then on Thursday, she knew DeCoutere was being closely cross-examined so she had her lawyer contact police to “amend” her statement.

So, until Friday, she didn’t feel the need to give police “the detail” that Ghomeshi went home with her and that she fondled his genitals.

Henein says she was asking why she didn’t tell police about Ghomeshi coming home with her.

“So that was a lie,” Henein says of the statement.

“Yup.”

Impressions

It is abundantly clear that Marie Henein has laid waste to the Crown’s case. However this is a non-jury trial and the matter has been submitted to the court for a verdict. I would be more confident of a defense verdict if there was a jury. The question is whether the judge will feel pressured into delivering a politically correct verdict.

Beyond just the impeachment, witness #3 did real damage to the Crown’s case. She established, albeit grudgingly, that the witnesses were exchanging huge numbers of e-mails, and plotting their respective accusations. If Henein had been unable to prove collusion, the prosecution could have argued that there was a common thread running through the “victims’” testimonies. But he couldn’t because the women coached each other.

A good lesson to be learned from this trial is that if you get a client like this, with national and international attention, you have to throw everything into it. Put everything else to the side. Concentrate on this one trial. It will make or break your reputation.