TORONTO – Former radio star Jian Ghomeshi faces maximum penalties that — if convicted — are dramatically different for the charges he faces.
While the most he could get for the headline-grabbing sexual assault counts against him is 18 months, the obscure choking charge he also faces carries a theoretical life in prison.
The huge gap in potential penalties is, in large part, related to a complex web of decisions and agreements made by both Crown and defence in the run-up to the former “Q” host’s trial, which starts Monday.
Canadian law recognizes two broad groups of offences: less serious summary offences and more serious indictable ones. A third group, which includes sexual assault, are called hybrid in that the prosecution can choose to proceed either summarily or by way of indictment depending on the gravity of the allegations.
“The Crown has elected to proceed summarily on the (sexual assault) counts that are before the court,” said Brendan Crawley, a spokesman for the Ministry of the Attorney General.
Going the summary route means the prosecution, after looking at exactly what Ghomeshi is alleged to have done, must have been satisfied the sexual assault allegations were not so serious that, if proven against the first-time offender, would warrant punishment more severe than a maximum 18 months.
However, given that the sex charges involve incidents that happened in 2002 and 2003, Ghomeshi’s lawyer would have had to agree to the summary proceedings given that charges prosecuted this way must normally be laid within six months of the alleged offence.
On the straight indictable choking charge, Ghomeshi opted for trial in the province’s lowest court, the Ontario court of justice.
“Where an accused elects to be tried by a provincial court judge, the accused’s trial will be heard and fully completed in the Ontario court of justice,” Crawley said.
The lower court route means, as one key consequence, no preliminary inquiry.
For the defence, preliminary hearings are largely an exercise in learning the full extent of the Crown’s case. They can also involve hearing witnesses under oath — a setup for later cross-examination at a trial in Superior Court, which instead will now be the first forum for any appeal arising out of Ghomeshi’s prosecution.
If prosecutors think their case is relatively weak, a preliminary may afford an opportunity to patch any holes. No preliminary — especially in sensitive sexual assault cases — also means complainants and witnesses need only testify once, a key consideration for the prosecution.
In Ghomeshi’s case, his lawyer Marie Henein must have felt confident that the Crown had disclosed enough pertinent material, such as videotaped witness statements and police records, to obviate the need for a preliminary hearing, said veteran criminal lawyer, Clayton Ruby.
“Sometimes, you know what the Crown’s case is from the disclosure you’re given,” Ruby said.
No preliminary inquiry also means a much faster timeline for getting to trial, which can otherwise take several years to take place.