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.

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.

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