1. The trial judge failed to consider relevant evidence of consent and mistaken belief in consent in convicting Mr. Ururyar.
At paragraph 23 of his Reasons for Judgment the trial judge recites portions of the examination in chief of Ms. Bristol:
Q. Mr. Ururyar, did you have sex with Mandi Gray the morning of January 31st, 2015 ?
A. Yes I did.
Q. Do you believe the sex was consensual ?
A. Yes, there's no doubt in my mind.
Later at p.15 of his Reasons for Judgment he quotes the following evidence:
Q. Did you believe that the sex was consensual while you were engaging in intercourse:
A. Yes, I do.
Q. And why did you think that ?
A. All of the sex acts that took place were mutual. We were both participating in them, the kissing, ah, the oral sex and the intercourse.
Q. Was there any indication to you that Ms. Gray was not enjoying herself ?
A. No, there wasn't.
Q. Was there any indication to you that shed did not want, ah, she wanted you to stop.
A. No.
Q. Did Ms. Gray cry at all during intercourse ?
A. No, definitely not.
Q. Did you ever get an impression that Ms. Gray was unhappy or not enjoying herself ?
A. No, I didn't get that impression.
Q. Did you ever feel that Ms. Gray was non-responsive to your actions ?
A. No.
At paragraph 37 on p.17 of the Reasons for Judgment the trial judge quotes the following from Ms. Bristol's examination in chief:
Q. And can you describe all the reasons why you believe that ?
A. Well, beginning at the text message in the evening when she said she wanted me to come to the bar and then we would go and have sex. And then at Victory Cafe, we arranged for her to come over to my place, ah and on the walk home, she also said - she also expressed wanting to have sex when we got back to my place. Um, and then when we started kissing, she then got on to of me to perform oral sex and then she got into a position for us to have intercourse.
Q. Okay, did you force Ms. Gray to perform any of those sexual acts ?
A. No, not at all.
Curiously, the trial judge concludes that consent and mistaken belief in consent are non-issues in the trial. He writes the following at p.171 of his Reasons for Judgment:
[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.
2. The trial judge applied a different standard of scrutiny to the evidence of the defendant and complainant.
At paragraph 359 of his Reasons for Judgment the trial judge comments on what would appear to be a central part of the defence case on both consent and credibility, namely, the "hot sex" text. The complainant invited the defendant to come out drinking with her by way of a text message on the night of the incident and to have "hot sex" afterwards. This is what the trial judge wrote:
[359] Evidence of a victim's sexual behaviour and sexual predisposition ordinarily is inadmissible. The "hot sex' text falls short of making anything apparent. The "hot sex" text can be read in many ways. If anything, Mr. Ururyar's made his alleged guilt more likely, as perhaps providing a stimulus for his later alleged assault.
This is to be contrasted with how he treats the frailties in the complainant's evidence. He states:
[487] How can you prove it ? You don't remember. He knows you don't remember. He is going to write the script and he did. Testimony incomplete, memory loss, etc. etc. And, of course, typically, no dialogue in the story. One full sentence by Ms. Gray ? What is it ? No power, no voice, defenceless.
R v. Gravesande 2015
ONCA 774:
In R v. Gravesande (supra) the Court of Appeal for Ontario was clear that it is an error of law for a trial judge to apply a higher or stricter level of scrutiny to the evidence of the defence to the evidence of the Crown. The court went on to say that to successfully advance this ground of appeal the appellant must identify something clear in the trial judge's reasons or the record indicating that a different standard of scrutiny was applied and something sufficiently significant to displace the defference due to a trial judge's credibility assessment.
3. The trial judge treated the evidence of the parties unevenly in a way that gave rise to a reasonable apprehension of bias.
A proper and thorough reading of Zuker J's Reasons for Judgment in R v. Ururyar could leave a reasonable third-party observer versed with the facts and issues in this case to the conclusion that the adjudicative process was unfair and biased - if not in reality, in appearance. (see for example - Clayson-Martin v. Martin 2015 ONCA 596 where the Court of Appeal reversed a trial judgment on this ground) The following passage from the Reasons for Judgment is one of several passages tending to support such a legal argument.
[523] There is a context for Ms. Gray's behaviour. The myths of rape should be dispelled once and for all. We cannot perpetuate the belief that niceness cannot coexist with violence, evil or deviance, and consequently the nice guy must not be guilty of the alleged offence. Nice people supposedly don't rape. This is not society's image. The accused knew Ms. Gray. And if you don't remember and when you know you don't remember, he, Mr. Ururyar, is going to get to write the script. Ms. Gray did remember. Everything, of course not. What happened to her, yes.
NOTE: This piece is written for the sole purpose of drawing attention to an issue of public importance. The principle that cases - all cases - must be decided impartially and in accordance with established legal principles is an issue of public importance. There is a real danger when passion and politics displaces law. That I submit is never in the public interest.
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