JOHNSON APPEAL
Lawyers state claims
The judge who convicted former Windsor Spitfire Ben Johnson of sexual assault for raping a 16-yearold in the bathroom stall of a downtown bar ignored evidence that she appeared sober enough to consent, his appeal lawyers say.
Superior Court Justice Kirk Munroe convicted Johnson, 23, last September after concluding the “near comatose” victim was so intoxicated that she was unable to consent at the time, note Johnson’s lawyers, James Lockyer and Alexander Ostroff, in documents filed with the Ontario Court of Appeal.
They argue it was the wrong conclusion.
The victim’s vomiting and staggering behaviour was also consistent with heavy, rapid drinking and she could have appeared coherent when she and Johnson engaged in sex inside the now-closed Mynt nightclub in Windsor on St. Patrick’s Day 2013, said Lockyer.
“The (victim’s) incapacity and apparent nature of her intoxication at the time of the sex acts were not the only reasonable conclusions available” based on all the evidence, he said.
“Since the Crown’s proof of incapacity was circumstantial, the verdict was unreasonable,” said Lockyer, who is seeking an acquittal or a new trial for Johnson.
Munroe rejected Johnson’s testimony that the victim was lucid until after the sex act. Johnson denied having intercourse, saying she only performed fellatio.
“This is the case of a 16-year-old girl so out of it from alcohol that she had to hang on to stand up,” said Munroe. “It is a high bar for incapacity by intoxication, but if there was such a case, this is it.”
No one in that condition can consent and Johnson can’t claim he knew she was capable of consenting, Munroe ruled.
The victim testified she lost her virginity, which caused bleeding.
The girl’s bleeding could have occurred during her close-contact grinding style of dancing at the bar, Johnson’s defence lawyer argued.
Lockyer said the judge rejected the “objective, reliable” evidence of a video showing the high-heeled victim climbing the stairs “unassisted and without difficulty” to the second-floor bathroom.
The victim, who was on Prozac for anxiety and depression and was warned not to drink, admitted she engaged in binge drinking on 20 occasions — once weekly — before March 17, 2013.
Johnson was sentenced to three years in prison but was released on bail shortly after his conviction pending the outcome of the appeal. He is not playing professionally but still training in Leamington,