Friday, July 22, 2016

Do the Reasons in R v. Ururyar Reveal Legal Error ?

     I have read the Reasons for Judgment in R  v. Mustafa Ururyar (July 21, 2016) and I must confess that I am of the view that they tend to reveal serious legal error rather than any ground-breaking advancement in our criminal law.  Perhaps the most significant error which jumps out at me from the Reasons for Judgment is the appearance that the trial judge goes to unreasonable lengths to embrace hollus bolus what I will describe as the emerging "victim-focused" theory of liability.  Paragraphs 489-508 inclusive of the Reasons recite a series of propositions and academic writings which appear to be entirely without any contextual application to the facts of the case or submitted by counsel for the parties.  Clearly, if these references were not raised by the litigants but by the trial judge they may prove to be problematic to the decision withstanding appellate review.  It is also clear on a proper reading of the Reasons that the trial judge's conclusion that the defences of consent and honest but mistaken belief in consent were abandoned appear to be in error.

Victim-Focused
Theory of Liability:

     The "victim-focused" theory of liability in sexual assault and sexual harassment cases is a theory of liability founded on the assumption that the subjective perceptions of the victim of these acts or omissions is what should govern in adjudicating these matters. In the sexual harassment context, the oft-cited articulation of this theory of liability is the Court of Appeal's obiter in Bannister  v. General Motors 40 O.R. (3d) 577: "No female should be called upon to defend their dignity or to resist or turn away from unwanted approaches or comments which are gender or sexually oriented.  It is an abuse of power for a supervisor to condone or participate in such conduct."   As I have argued elsewhere, tribunals like the Justices of the Peace Review Council and others have taken this quote to dispense with the consent defence or "vexatious" and "unwelcome" statutory defence to sexual harassment under the Human Rights Code (see for example Re His Worship Massiah (2015)). For their purposes it is sufficient that the recipient is "uncomfortable" and does not by word or conduct have to signal any disapproval with the act or utterance to the perpetrator.  The following passages from Zuker J's Reasons for Judgement in R  v.  Ururyar clearly seem to adopt this theory of liability:

[481]     Mr. Ururyar denies he sexually assaulted Ms. Gray.  Consent is therefore not an issue and more importantly Ms. Gray's historical text, even if alleged by Mr. Ururyar, may well be irrelevant.

[482]     Further since (it never took place) consent is a non-issue, there is no factual foundation, if argued, of any defence of honest, but mistaken belief in consent, although this defence was not advanced at trial.  see supra, R  v.  Ewanchuk, [1999] 1 S.C.R. 330, at paras. 41-49

[492]     Without consent, "No", means "No", no matter what the situation or circumstances.  It doesn't matter if the victim was drinking, out at night along, sexually exploited, on a date with the perpetrator, or how the victim dressed.  No one askes to be raped.  The responsibility and blame lie with the perpetrator who takes advantage of a vulnerable victim or violates the victim's trust to commit the crime of assault.

 Consent Actually
A Live issue on trial:

     The following excerpts from the Reasons for Judgement show that consent and honest but mistaken belief in consent were in fact live issues at trial:

[227]     To find the accused guilty of sexual assault, the Crown must prove each of the following elements beyond a reasonable doubt.

i.   That Mr. Ururyar intentionally applied force to Ms. Gray;

ii   That Ms. Gray did not consent to the force that Mr. Ururyar applied;

iii   That Mr. Ururyar knew that Mr. Gray did not consent to the force that applied; and

iv   That the force that Mr. Ururyar applied took place in circumstances of a sexual naurre.

[228]   If the Crown has not satisfied the Court beyond a reasonable doubt of each of these essential elements, I must find Mr. Ururyar not guilty of sexual assault.

[242]   To determine Mr. Ururyar's state of mind he knew about Ms. Gray's consent or lack of it, I must consider all the evidence.

[243]   I must consider their words and conduct before, at the time and after Mr. Ururyar applied force to Ms. Gray.

[244]   If I have a reasonable doubt that Mr. Ururyar knew that Ms. Gray did not consent to the force that Mr. Ururyar applied, then I must find Mr. Ururyar not guilty.
   

Defence Counsel
Did Not Abandon
Consent or Honest
But Mistaken Belief
in Consent:

[353]   MS. BRISTOW:  "Right. But if you don't believe his evidence, just based on Ms. Grey's evidence, in my submission, there is enough there to raise a reasonable doubt as to whether or not there was an honest but mistaken belief in consent. just based on what Ms. Grey said happened.











11 comments:

  1. Bad sex doesn't equate to rape. Did she feel raped because he didn't consider her sexual needs ? Hardly a reason to send a a man to prison

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  2. I read the entire transcript ...Mr. Ururyar may be a jerk or whatever label you want to give him but his story is the culmination of the quote "hell hath no fury like a woman scorned"...his testimony was clear concise unwavering. Ms. Gray couldn't remember anything about the night but she was sure she might not have consented.....Mr Ururyar is paying the price for Mr Ghomeshi s aquital

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  3. I read the entire transcript ...Mr. Ururyar may be a jerk or whatever label you want to give him but his story is the culmination of the quote "hell hath no fury like a woman scorned"...his testimony was clear concise unwavering. Ms. Gray couldn't remember anything about the night but she was sure she might not have consented.....Mr Ururyar is paying the price for Mr Ghomeshi s aquital

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  4. Bad sex doesn't equate to rape. Did she feel raped because he didn't consider her sexual needs ? Hardly a reason to send a a man to prison

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  5. I like the first point you make. It's kinda as if the judge would had written 'Whales are actually mammals not fish, therefore Ururyar is guilty.' The first claim may be true and counterintuitive but it is not actually relevant as evidence for guilt.

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  6. The most astonishing aspect of the judge's reasoning is his not actually giving any sensible reason *why* he finds Ururyar's version so very not credible. He substitutes repeated assertions of for arguments for that position.

    The reasons he does give essentially rely on the same 'rape myths' that he argues against, but now applied against the defendant's credibility instead of the complainant's.

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  7. re the consent point: not sure if defense lawyer is correct here. Ms. Gray said that maybe she "didn't not consent", but this is irrelevant or at least not decisive in the context of a doctrine of affirmative consent. The doubts she had were about maybe not having protested. But she didn't say she had doubts about whether she had consented or not. She has never said she consented. Only that maybe she didn't not consent. If affirmative consent is required then her admission here is not that important. For a defense of an honest but mistaken belief in consent it may also not be that important. ms. gray's words were only about actively not consenting/protesting.

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    1. I think MG's text to her friend could be read as referring to consent for the purposes of the actus reuse, or consent for the purposes of the mens rea, or both together - as not everyone distinguishes between the two the way that the law assumes.

      MG stated in her text message:

      "And I said, and this is what I responded to the police is: 'Like, if you don’t consent to sex but you don’t not consent, I don’t know what that is.'"

      She could be referring to her own mental state - e.g. her recollection of her mental state at the time is uncertain. I can think of. I can think of situations in the past where I cannot recall how eager/reluctant I was to do something that I ultimately did. I might very well muse about the episode to a friend in the way that MG did. This could indicate a reasonable doubt as to whether Crown has proved the actus reuse. MU's lawyer seems to have adopted this interpretation - MG herself doubted whether her brain was in non-consent mode or not.

      On the other hand, if what she means to say is that she is clear as to the recollection of her mental state, but not sure what the legal implications are of not outwardly expressing non-consent, then this uncertainty would seem to be irrelevant to a mistake of fact defence (per Ewanchuk).

      I think the latter is slightly more likely, but both seem plausible. This fact could suggest a need to revisit the way that the law uses "consent" to mean different things. It would probably be helpful to be clear what one means when one uses the word "consent".

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  8. R. v. J.J.R.D. makes me pessimistic about Ururyar's chances of winning on appeal https://www.canlii.org/en/on/onca/doc/2006/2006canlii40088/2006canlii40088.html (read # 1 and 2) Apparently a judge doesn't actually have to explain why he finds an accused's testimony sufficiently not credible. And the 'beyond a reasonable doubt' requirement can be satisfied completely by testimony of complainant alone.

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  9. Ms. Grays testimony was full of inconsistencies and equivocations. It seems the judge believed her because she must have been so traumatized as to not be able to remember.... hardly a good reason to believe someone.

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  10. Ms. Grays testimony was full of inconsistencies and equivocations. It seems the judge believed her because she must have been so traumatized as to not be able to remember.... hardly a good reason to believe someone.

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