Hot News: Jian Ghomeshi case will pose a challenge for his defence team — and the ...

Five weeks ago, Jian Ghomeshi was Canada's most popular radio star. Today he's a public pariah, a man accused publicly and now legally of a long string of heinous acts.

What grand news it is that Toronto Police have laid criminal charges against former CBC radio star Jian Ghomeshi.

I say that only because news it is.

Of late, it seems to me, more and more of the judgments and punishments that are being dished out are of the extrajudicial variety, so I am relieved to see one such matter back where it belongs, in the flawed but familiar arms of the justice system. Continue reading...

On Wednesday, Mr. Ghomeshi was charged with four counts of sexual assault and a fifth of choking a woman to enable an attempted sexual assault. The charges mark the beginning of a legal odyssey for the one-time 'Q' host, one experts say will pose severe challenges for both his legal team and the prosecution.

The case against him involves three women and multiple acts, all of which allegedly took place more than a decade ago. Of the three complainants, only one can be named publicly. Actress Lucy DeCoutere came forward last month. She told reporters Mr. Ghomeshi grabbed her by the neck, choked her and slapped her in the face after a date. Details of the others are covered by a publication ban.

The five events in question all allegedly took place over an eight-month period beginning on New Year's Eve 2002 and ending in July of the following year. Norman Boxall, a criminal defence lawyer in Ottawa, said it's not unusual for sexual-assault accusations to surface years after the fact. Still, he said, all that elapsed time makes it difficult for the police to investigate, for the Crown to present evidence and even for the defence.

'Memories weaken,' he said. 'They get lost with time. Real evidence, if there is any, could disappear. Quite often we look at electronic messages: texts, emails could be very relevant and that stuff could be destroyed or lost by now.'

Witnesses, too, could well have disappeared, died or forgotten what they saw or heard a decade ago, Mr. Boxall said. 'Old charges, that's something we see, particularly in sexual assault,' he said. 'But yes, it creates issues.'

Compounding those issues, from a legal point of view, is the extreme public nature of this case. Reporters lined up for hours to gain entry to Mr. Ghomeshi's bail hearing Wednesday. Outside the court, dozens of camera operators and journalists circled, while a news helicopter filmed from above.

From a defence point of view, the publicity could it make hard to find an impartial jury, should Mr. Ghomeshi elect a jury trial, Mr. Boxall said. It also makes it tough for both the Crown and the defence to test the veracity of witness statements.

'In cases where there are multiple complainants, one of the issues could be similarity of complaints,' he said. 'If the details of one complaint are in the media, the possibility of tainting another witness is at the very least present.'

This is also a case where it's quite likely the public will hear much more about Mr. Ghomeshi's sexual habits and alleged acts than a jury or judge will be allowed to consider.

For example, Mr. Ghomeshi reportedly has a videotape of what he characterized as a consensual, though violent, sexual act. But unless that act specifically depicts one of the charged incidents, it won't likely be played in court.

'Evidence of other incidents than those charged is presumptively inadmissible,' Mr. Boxall said. 'However in certain circumstances it can be admitted' if the trial judge determines that its value to the case exceeds its prejudicial effect.

Mr. Ghomeshi's attorneys may even push to have the charges severed, so that evidence from each complainant is heard in separate trials.

If found guilty, Mr. Ghomeshi could face severe consequences. Under section 246 (a) of the Criminal Code of Canada choking someone with the intent to commit a crime, including sexual assault, carries a maximum punishment of life in prison.

'This would be true even if the sexual act, in that instance, did not take place,' Toronto defence lawyer Sean Robichaud wrote in an email. 'What is important under this particular section is the choking and the reasons for doing it, regardless of whether the act actually took place.'

Mr. Ghomeshi did not address the allegations Wednesday and none of them have been proven in court. In a brief statement, his lawyer, Marie Henein said her client intended to plead not guilty.

'We will address these allegations fully and directly,' she said. 'It is not my practice to litigate my cases in the media. We will say whatever we have to say in a court of law.'

National Post * Email: rwarnica@nationalpost.com | Twitter: richardwarnica

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