Court to hear conviction appeal in York U. sex assault case
In February 2016, two sex assault trials began at Old City Hall. Jian Ghomeshi’s and Mustafa Ururyar’s. The controversial decisions in both cases made headlines later that year — for Ghomeshi after his acquittals, for Ururyar after his conviction and sentencing — about whether the courts are fairly adjudicating sexual assault cases.
Ontario Court Justice Marvin Zuker’s 179-page judgment convicting Ururyar of raping fellow York University student Mandi Gray roundly denounced rape myths, stereotypes about who is capable of being a rapist and victim blaming.
The ruling elicited praise for Zuker from many sexual assault survivors, as well as observers frustrated by the justice system’s treatment of sexual assault com- plainants.
But the ruling immediately came under fire, with criticisms Zuker was biased against the accused and for Zuker’s unusual citations of academic research and literature including Maya Angelou’s I Know Why the Caged Bird Sings that he looked up himself and were never brought up during the trial.
Ururyar’s appeal of his conviction and sentence is set to be heard Tuesday.
Gray, who chose not to have a publication ban on her identity, has organized a protest before the hearing begins.
The central question the appeal hearing will address is whether Zuker was allowed to order Ururyar to pay $8,000 in legal fees for the lawyer Gray hired to advise her — a never-before seen order.
In preparation, Gray sent out an informal survey to answer the question: “How much did your sexual assault cost you?”
She asked about both financial costs like lost tuition fees, lost income, therapy bills, medication, moving to get away from the perpetrator and transport to get to court or to therapy, as well as the emotional, social and psychological costs that are hard to ascribe a dollar amount to.
The overall dollar amount from 156 responses came to about $7 million, Gray said.
Respondents described unexpected costs like having to move or buy a new mattress. Forty-six per cent said they lost an average of $14,000 in tuition fees. Many said they paid thousands of dollars for medication.
“I wanted to highlight the actual real dollar amount that a survivor of sexual assault absorbs because of the actions of the perpetrator and also the failure of all levels of government to ensure there are safety nets in place for people following sexual assaults,” Gray said.
She points in particular to a need for sexual assault complainants to access affordable legal advice, though a current Ontario pilot program is a good first step. Another important area raised by the survey is the need for sexual assault victims to have access to appropriate health care and rape kits if they want them no matter where they live, she says.
Tuesday’s appeal will hear arguments from Ururyar’s lawyer, the Crown, the Criminal Lawyer’s Association and the Barbra Schlifer Clinic, which represents women who have been affected by sexual or domestic violence.
“A reasonable observer would conclude that this case was more about commenting on social policy and the perceived inequities that face sexual assault complainants in the criminal justice system as opposed to fairly reviewing the evidence,” lawyer Mark Halfyard argues in the appellant’s factum.
He argues Zuker’s bias is apparent in part because he issued a 55-page written sentencing decision immediately after hearing the defence submissions and without reviewing the previously submitted defence materials.
Zuker’s reasoning is also “irrational and at times impossible to follow,” Halfyard argues.
Assistant Crown attorney Danielle Carbonneau argues in the Crown’s factum that Zuker’s decision is rea- sonable.
She suggests the reasons are at times hard to follow because of the “prosaic writing style. It is a much more flourished style of writing, one that lawyers are not accustomed to reading.”
On the issue of a pre-written sentencing decision she argues that the sentencing range was already known to the judge and that he was being efficient in a time where the courts are struggling to cut down delays.
“Why shouldn’t the judge take it upon himself to do some research on the range of sentences and write down his thoughts? Must he wait for counsel to force-feed him case law at the sentencing hearing? The trial judge has a legal mind of his own,” she wrote.
Carbonneau argues Zuker’s refer- ences to external material are acceptable because he based his final decision on the evidence.
She contends the courts have made some progress in addressing the past wrongs towards disadvantaged groups including visible minorities and indigenous people but continues to overlook the rights of complainants and victims.
Zuker’s examination of the social context “shifted the focus to another participant in the criminal justice system, complainants who have been historically disadvantaged by the application of rape myths in sexual assault trials,” she says. “Through his examination of social context the trial judge implores us to adopt a new perspective, one that isn’t solely focused on the accused, which may be offensive to some.”