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Ghomeshi could have a case for malicious prosecution

|Written By Gabrielle Giroday

In the raft of coverage regarding the not guilty verdict against Jian Ghomeshi for four counts of sexual assault and one of choking, one Toronto lawyer weighed in with an interesting take.

Jian Ghomeshi leaves court after an Ontario judge found him not guilty on five charges last week. (Photo: Jenna Marie Wakani/Reuters)
What if Ghomeshi decides he wants to return to the courtroom to sue for malicious prosecution? Allan Rouben, an appellate lawyer, says he believes Ghomeshi has grounds to pursue such a case given what Ontario Court of Justice William B. Horkins said in his ruling.

“Certainly, as it regards the Crown and police, I think there was every reason for them to initiate the prosecution of Mr. Ghomeshi given the information they had from the complainants.

“However, as the trial proceeded and further information came to light, it seems to me the Crown and police should have taken a very hard look at the matter and asked whether there was still a reasonable prospect of conviction,” he says.

“Damaging contradictory information was being given to the Crown and police by one or more of the complainants while their evidence was underway, and there was of course the very damaging cross-examination. I think it was incumbent on the Crown to re-evaluate the situation and decide whether they could still safely proceed.”

Rouben says during the trial prosecutors and police were getting more information from the complainants that “contradicted or elaborated on information” they had already received.  

“Of course, during the cross-examination a lot of additional information came out of that, in the form of e-mails that it appears the Crown didn’t have. When they kept getting this new information, and it became clear the police and the Crown hadn’t been given full information by the complainants, I think there was an obligation on them to . . . take a step back and consider whether there was still a reasonable prospect of conviction.”  

In his controversial ruling, Horkins said the value of one complainant’s evidence suffered “irreparable damage” under cross-examination.

“Defence counsel’s questioning revealed inconsistencies, and incongruous and deceptive conduct. L.R. has been exposed as a witness willing to withhold relevant information from the police, from the Crown and from the Court. It is clear that she deliberately breached her oath to tell the truth. Her value as a reliable witness is diminished accordingly,” said the ruling.

Of the second complainant, Lucy DeCouture, he said she “proceeded to consciously suppress relevant and material information, despite an oath.”

And of the third complainant, Horkins says she “was clearly ‘playing chicken’ with the justice system.”

“She was prepared to tell half the truth for as long as she thought she might get away with it,” he said. According to the 2009 Supreme Court of Canada ruling, Miazga v. Kvello Estate, “malicious prosecution is an intentional tort designed to provide redress for losses flowing from an unjustified prosecution.”

“To succeed in an action for malicious prosecution, a plaintiff must prove that the prosecution was: (1) initiated by the defendant; (2) terminated in favour of the plaintiff; (3) undertaken without reasonable and probable cause; and (4) motivated by malice or a primary purpose other than that of carrying the law into effect,” said the ruling.

Rouben says he is not advocating for a malicious prosecution claim by Ghomeshi.

“There’s grounds for it in [the judge’s] decision, whether it’s a wise course of action is a different issue,” says Rouben.

Not all malicious prosecution cases are against the Crown or police. In 2014, the Ontario Superior Court awarded damages to a man who falsely accused another of criminal actions in Drainville v. Vilchez.

  • Cross Examination

    joshua henderson
    If Mr. Ghomeshi brought a suit for malicious prosecution he would be cross-examined during his examination for discovery. I doubt he wants to expose himself to telling to truth about what really happened.
  • Me

    Mr Jones
    Malicious prosecution? Hardly. Look at the 3rd and 4th requirements noted in the Miazga case. Undertaken without reasonable cause? No, there was clear reason to commence this prosecution. Motivated by malice? Again, no. The Crown had complainants who made a complaint. It is their job to pursue it. Complainants almost always lose ground in cross-examination. It's not up to the Crown to take on the role of judge and decide the case. From the sounds of it, this case proceeded exactly as it should have; a complaint was made, it was tested in court, and a decision was made.
  • surviver

    Yes of course money buts law or anything for sale.. Women need to understand it's a legal business not a justice system.
  • The truth cares for nobody's feelings.

    Moi and Moi
    Nobody said the process of getting to the truth would be easy; suppressing it may calm your nerves but certainly won't help you win cases in a court of law.
  • Response

    Desiree Pinto
    It's unfortunate that the blatant process/effect of re-victimization of those who stepped forward is not considered enough for some people.
  • Mr

    Daniel Summers
    But these women are NOT victims!! They are LIARS! They lied to the police and the court UNDER OATH!

    The only Victim here is Ghomeshi and he deserves to have Justice against these vindictive women! Women can make a false claim, destroy a mans name and public image and get off scot free! How is that Justice?

    He should sue CBC for wrongful dismissal, the province for maliscious persecution, and then Sue all the women in civil court for his court costs and emotional suffering.

    Justice prevailed. It takes more than just an accusation to be guilty of sexual assault.
  • HA

    Anna Karennina
    LOL It's so funny that you think he should sue everybody. Guess you forgot he tried to sue the CBC and then backpedaled very quickly with his tail between his legs. That probably happened right after someone told him he would have to TESTIFY in any lawsuit he filed. So obviously justice did not prevail. Clearly you did not see the comment about how the legal business is just that. A legal business and not a business that sells justice. Funny tho. yeah, no, he will never sue anybody but I'd LOVE to see that. Thanks for that laugh.




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