The Standard (St. Catharines)

Teens acquitted of sexual assault

Victim testified she was extremely intoxicate­d and had passed in and out of consciousn­ess

- BILL SAWCHUK

Sobs of joy and anguish filled a St. Catharines courtroom Thursday as a judge dismissed charges against four Niagara Falls high school football players who were charged with raping a woman in the back seat of a car following an alcoholfue­led house party.

On one side of the gallery, mothers of two of the defendants from A.N. Myer Secondary School sobbed in relief.

On the other side, the complainan­t buried her head in the shoulder of a supporter and sobbed in despair.

Shouts of “Yes, Yes, Yes,” from someone celebratin­g on the defendants’ side of the gallery were met, on the other side, with an icy stare from the complainan­t’s exboyfrien­d.

Judge Fergus O’Donnell presided over the non-jury trial, which lasted two weeks, in the Ontario Court of Justice. He prefaced his verdict by addressing the complainan­t, who spent four days on the stand.

“As an observer of how this regrettabl­e narrative played out over two weeks of testimony, I do not believe the complainan­t has anything for which to blame herself,” he said. “She has her recollecti­on of how things played out, and her memory may well be the true narrative. She came forward with courage and ran the gauntlet of a criminal trial with dignity.

“Ultimately though, the standard of proof I must apply, as a judge in a criminal trial, is an extremely exacting one. Any belief I, or anyone else, have may very well be true, or may very well be likely, or even

highly likely — but that is not the test.”

O’Donnell said the law demands the Crown prove its case beyond a reasonable doubt and he was not satisfied it met that burden.

“On the evidence before me, conviction­s would be unsafe,” he said.

The trial heard from seven witnesses, including five friends of the teenagers, a scientist from the Centre for Forensic Sciences, and the complainan­t herself.

The accused, who were 16 and 17 at the time of their arrests, cannot be named under provisions of the Youth Criminal Justice Act, nor can the complainan­t, whose name is also covered by a mandatory publicatio­n ban on victims of sexual assault. The witnesses, who are also underage, cannot be named either.

The court heard that dozens of high school students from Denis Morris Catholic High School in St. Catharines and A.N. Myer in Niagara Falls between the ages of 15 and 18 attended the party in August of 2016 at a St. Catharines residence.

As the party wound down in the early morning hours, the intoxicate­d victim had a dispute with a close friend and decided to leave. When her boyfriend, who was in his 20s, wouldn’t pick her up, she forced her way into the car of one of the defendants and sprawled across the laps of three teens in the back seat. She then demanded a ride to her then boyfriend’s house in Thorold.

Sexual activity took place on the trip from St. Catharines and at a school parking lot in Thorold, across the street from her boyfriend’s home.

The victim testified said she passed in and out of consciousn­ess in the back seat. The court heard she eventually left the car screaming in terror, with her pants and underwear around her ankles. The court also heard conflictin­g testimony from a witness in the car that she did consent.

O’Donnell said he had found inconsiste­ncies and disconnect­s in the evidence presented by both sides.

“The issues here focus on consent,” O’Donnell said. “Was the complainan­t capable of consent? For example, did she understand the nature of the acts in the car to the degree that she could reject them or agree with them?

“This is an area in which judges have come under criticism in the past, but we must remember a drunk person can have the required capacity to consent to sex. The person can even be quite intoxicate­d and still have that capacity.”

 ?? JULIE JOCSAK STANDARD STAFF
STANDARD PHOTO ?? The Robert S. K. Welch Courthouse in St. Catharines.
JULIE JOCSAK STANDARD STAFF STANDARD PHOTO The Robert S. K. Welch Courthouse in St. Catharines.

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