Judge’s ‘unusual approach’ in assault trial questioned
Central issue in appeals court hearing is whether commentary equalled bias
TRIAL JUDGE “There is a context for Ms. Gray’s behaviour. The myths of rape should be dispelled once and for all.” Ontario Court Justice Marvin Zuker
APPEAL JUDGE “He spent a lot more time talking about the rape myths than the evidence.” Superior Court Justice Michael Dambrot
The “unusual approach” taken by Ontario Court Justice Marvin Zuker in convicting Mustafa Ururyar of raping fellow York University student Mandi Gray came under unusually harsh criticism from an appeal judge Tuesday.
During the appeal hearing of Ururyar’s 2016 conviction, Superior Court Justice Michael Dambrot referred to Zuker twice as “lazy,” accused him of “showing off,” observed his reasoning appeared to be “unmoored,” and once, after a lawyer quoted a confusing statement made by Zuker, simply heaved a dramatic sigh.
The central issue to be decided is whether Zuker’s decisions to convict Ururyar and sentence him to 18 months in jail and his comments about the accused showed bias or the appearance of bias.
But the hearing ended up spending some time delving into what the role of a judge should be in a time of national public debate about how the criminal justice system prosecutes sexual assault cases.
Crown lawyer Danielle Carbonneau argued Zuker’s lengthy commentary about rape myths, victim-blaming, the meaning of informed consent, trauma and the “need to understand the pressures of the legal system and create solutions that change cultural consciousness as well as law” stemmed from the current social context.
Zuker, who is now retired, saw a need to inform and perhaps respond to the public and the media’s concerns given that his decision came in the wake of the high-profile Jian Ghomeshi trial and the Justice Robin Camp inquiry, Carbonneau suggested.
“These cases do lead the public to lose confidence in the administration of justice and so it is a pressing objective to try to instill confidence . . . that courts are not applying these outdated stereotypes,” Carbonneau said.
Dambrot disagreed that Zuker took the right approach.
“Of course it is important to dispel myths, but you do that by deciding cases correctly and appropriately not by using your podium of reasons for judgment as a place for your own manifesto,” he said.
“It is dangerous thing. Judges judge. They should do it right. They should do it according to the principles that apply. And they should do it fairly in accordance with their oath. They should not apply myths and if counsel suggests a myth then (they) absolutely should say ‘what are you talking about?’ ”
Ururyar’s lawyer Mark Halfyard argued Zuker’s 179-page judgment is illogical, hard to understand, fails to properly analyze the evidence and, along with his comments in court after the ruling, shows bias against the accused.
The judge engaged in a “scathing and personal condemnation” of the accused’s evidence, he argued, adding that Zuker’s academic references, which were never addressed in court, led him to distort the evidence of the accused, or at least create the appearance of bias.
Dambrot slammed Zuker for issu- ing a 55-page pre-written and printed sentencing decision immediately after hearing defence submissions and without taking time to consider the defence materials.
He also took issue with the “sarcastic tone” used by Zuker and his habit of regurgitating large portions of evidence verbatim with no analysis.
(This isn’t the first time Zuker’s reasons have been criticized. In 2014, Zuker found that a man’s Charter rights had been violated due to racial profiling and acquitted him. But an appeal judge ordered a retrial since “unfortunately, it is not clear what the trial judge did and why he did it.”)
Dambrot found it “troublesome” that Zuker spent so much time commenting in general about myths and stereotypes like “nice guys don’t rape” rather than making clear factual findings.
“He spent a lot more time talking about the rape myths than the evi- dence,” Dambrot said. “There are cases where judges have said next to nothing (about their credibility assessments) but they don’t usually take 179 pages . . . if he’s got the time to write 179 pages, he could have written 180 pages.”
The hearing spent very little time on whether Zuker made the right decision in convicting Ururyar. Dambrot said the Crown’s explanation of what Zuker meant in his reasons were persuasive.
The issue, Dambrot said, that Zuker himself failed to explain why he made the decision he did.
Carbonneau argued Zuker’s decision to spend a lot of time explaining rape myths was because “rape myths arose in this case as they often do in criminal cases of sexual assault.”
But Dambrot said Zuker didn’t clearly connect the rape myths to the evidence in the case.
At one point in the hearing Dam- brot suggested that it was simple for judges to avoid rape myths.
But he was challenged by Gray’s supporters in the courtroom when he suggested there is no rape myth stemming from the defence suggestion Gray made up a false allegation to support a “political agenda.”
Outside the court, Gray said she sometimes wishes Zuker had just delivered a short and simple decision.
“For a lot of reasons I’m annoyed and angry that he needed to pull this male hero type approach to the matter like he could alleviate all the problems of the justice system at the expense of someone who should just be convicted and has now prolonged this for me,” she said.
“But on the other hand we wouldn’t be having these conversations otherwise.
If the conviction is overturned and a new trial is ordered a key issue in the appeal may also not be decided: whether it was appropriate for Zuker to order Ururyar to pay Gray $8,000 in legal fees for the lawyer she hired.
If Dambrot decides to overturn the conviction on other grounds, he may not deal with the question at all.
His decision is expected on June 8.