During the first week of his trial, Jian Ghomeshi did not speak.
This is what we now expect of the former CBC star. The man who pulled the levers of Canadian fame as a radio personality, a man known for his voice, pushed the mute button after abuse allegations exploded in the fall of 2014.
He’s been mum ever since.
But inside Courtroom 125 at Old City Hall, his silence is proving to be something else: a secret weapon.
On Friday, defence attorney Marie Henein resumed her cross-examination of Lucy DeCoutere, picking up after a Thursday cliffhanger that sparked gasps and chortles from members of the public piled into the media overflow room.
That’s the kind of trial this is: the overflow room is in dire need of an overflow room.
Henein showed the court multiple emails DeCoutere had sent to Ghomeshi, months after he allegedly choked and slapped her. Private Facebook messages were read. Henein introduced as evidence more photos and a handwritten letter.
She argued DeCoutere is lying.
What Justice William B. Horkins makes of this latest twist is impossible to guess. He could make millions in a Vegas poker tournament. As most eyes in the gallery are saucer big, as jaws are collected from the musty floor, he looks like he’s reading the on-screen program guide on his TV while eating porridge in bed.
There’s no question Henein is a freakishly gifted trial lawyer. If she stopped me on the street — “Before I go any further, are you absolutely sure you are a South Asian male? That’s the evidence you want to give us under oath?” — I’d freeze in terror and at least consider the possibility I was, say, a Scandinavian female.
But the real story of Week 1 is the accused.
Inside court this week, Ghomeshi was a mime without the face paint or amusing gestures. He blinked rapidly. He stared into space. He rested his head on a fist. On occasion, he’d cock his ear to the right, to absorb whispers from Danielle Robitaille, another member of his Dream Team. Sometimes, he’d put pen to paper, though never longer than a few seconds — a few dabs, making it look like he was playing Tic-Tac-Toe against himself on a long-haul flight.
When he strolls into court each morning, it’s as if his lips are spackled with an adhesive. He starts each day by touching the hand of his mother, who sits in the front row behind Plexiglas and a veil of angst. He offers her a flimsy, wordless smile.
For a guy who once yammered and purred non-stop, like a Siamese cat in heat, months of silence has produced a supernatural effect: it made him vanish. Ghomeshi became as inanimate as the gargoyles at Old City Hall, a grotesque with no life force.
The three complainants, two of whom can’t be identified under a publication ban, have given statements to the police. They have met with the Crown. They have lawyers. They have given multiple media interviews.
But both DeCoutere and the first witness seem to have forgotten something along this journey: the man now leaning back in his chair a few feet from the witness stand has memories of his own. He also has evidence that was never admitted in the court of public opinion when he was tried in absentia and found guilty.
That evidence — emails the complainants don’t remember sending, photos they don’t remember posing for, letters they don’t remember writing, calls they don’t remember dialing, small and not-so-small details they don’t remember at all — are now flooding out of a hard drive that was clearly designed by CSIS or the late Steve Jobs and features lifetime undelete.
Or the former host of Q has a time machine.
“Do you recall taking some photographs with him when you were at the barbecue?” Henein asked DeCoutere, referring to a social outing after the alleged assault.
“I don’t recall that, no,” DeCoutere replied.
Henein: “And you didn’t just go for a brunch with him. You went for a walk in the park, right?”
DeCoutere: “Maybe, yeah.”
Henein: “Remember posing for some pictures?”
DeCoutere: “In the park?”
Henein: “Yeah.”
DeCoutere: “I don’t remember that. No.”
We often think of memory as linear, static, an infallible record of experience. But memory is dynamic, unreliable and especially susceptible to trauma. This is a point DeCoutere made more eloquently than the first complainant, who sounded like she buses her memories to a New Age retreat in Victoria each year: “And in the early days, memories, you remember certain pieces of them. And as you sit with them, you remember more.”
Except, it would seem, the make of car you were in when allegedly assaulted, the yoga poses you were doing, the pub visit that never was. But this is no longer exclusively about what these women remember. It’s now also about what Ghomeshi remembers. As Henein unleashes her Hollywood theatrics, striding across the courtroom in heels that thump ominously, like a hungry T-Rex, what she is really doing is navigating both sides of this adversarial memory bank. She is using discovery as her GPS and Ghomeshi’s version of events as her destination.
This is a luxury the Crown does not have.
At one point on the second day, after the first complainant swore she never communicated with Ghomeshi after the alleged assault, Henein produced an email to the contrary.
“Six months later, you write to him again,” she added soon after, placing another email with a bikini photo attachment on the table for Crown attorneys Michael Callaghan and Corie Langdon to review.
They turned and stared at each other the way parents do when a principal calls out of the blue to say, “Your child set fire to the portable today.”
Which is not to say Ghomeshi is headed toward an acquittal. The central allegations so far — that Ghomeshi punched the first complainant three times in the head and yanked on her hair, that he choked and slapped DeCoutere — are still standing like flagpoles, albeit flagpoles in a hurricane of reasonable doubt.
“I didn’t know these photos existed,” said DeCoutere at one point.
“I don’t remember that,” said the first complainant.
The problem for them is Ghomeshi did remember. He’s listened to 16 months of attacks without returning fire. This week, without still saying a word, he replied.
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