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.
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.