Top court grants bail to Mandi Gray rapist
Trial judge Marvin Zuker’s performance called ‘a jaw-dropper that raises questions of having a predisposed mind’
Just under two weeks after he was convicted of raping a fellow York University doctoral student, Mustafa Ururyar was released on bail Wednesday.
Superior Court Justice Michael Quigley overturned the lower court’s decision last week to revoke Ururyar’s bail. He did not release his reasons immediately, but the previous day in court he openly questioned whether the judge in the case, Ontario Court Justice Marvin Zuker, had a “mind that may be a little too full” with academic texts and tomes on gender-based violence, rape and trauma to deliver a fully impartial ruling. “That was a jaw-dropper,” said Quigley, referring to the number of academic references cited in Zuker’s judgment that had not been introduced as evidence during the court case. “That raises questions of having a predisposed mind.”
After a six-day trial spread out over six months, Zuker convicted 29year-old Ururyar on July 21 of sexually assaulting Mandi Gray.
The two had been hooking up for two weeks before the night of the assault in January 2015.
Ururyar’s defence had been that the two had consensual break-up sex, and Gray fabricated the rape charge to exact revenge and further her “political agenda” to become a champion of sex assault victims across the country. (Gray has waived the publication ban on her name.)
Zuker, in the end, found Gray “very credible and trustworthy” and said Ururyar’s version of what happened that night was “a fabrication, credible never.”
Four days later, he revoked Ururyar’s bail. He wasn’t worried about Ururyar fleeing the country or reoffending while awaiting his sentencing, he said. His concern was the message his release would send to greater society, breaking confidence in the administration of justice.
“What is the significance of rape if a person doesn’t go to jail?” Zuker said. If he set him free for three months, before sentencing, it would “make a mockery out of what this man has been convicted of.”
Ururyar’s defence team appealed the conviction and asked for bail in the meantime. Usually, appeals are not heard until after the sentence is delivered and the case fully closed, but Quigley agreed with the defence that this was a “rare and unusual case.” The appeal will be heard after sentencing by a Superior Court judge.
Ururyar’s defence team’s appeal raises six concerns about Zuker’s judgment, the biggest one being he “displayed a reasonable apprehension of bias” towards Gray and sexual assault victims in general.
“This case was more about commenting on social policy and the per- ceived inequities sexual assault complainants face in the criminal justice system than fairly reviewing the evidence,” said Mark Halfyard, a member of Ururyar’s defence team.
The judge, Halfyard’s affidavit argued, acted not as an impartial judge, but as an advocate and witness.
A big factor in Halfyard’s argument was that Zuker cited 13 social science books and articles in his 179-page ruling, supporting his positions on things such as memory fragmentation and victim response to trauma, none of which had been introduced as evidence during the case.
“Some of the sources the trial judge relies on are not even from impartial research sources,” said Halfyard, pointing out a manual put out by the National District Attorneys Association — called “Victim Responses to Sexual Assault: Counterintuitive or Simply Adaptive” — cited by Zuker.
Breese Davies, the vice-president of the Criminal Lawyers’ Association, said it was “unusual” for judges to cite social science research on issues, “without giving counsel an opportunity to make submissions or perhaps call evidence to refute it.”
But University of Toronto law professor Denise Réaume said it was a “little piece of ideological idiocy” to think that judges, unlike other people, wouldn’t draw from their personal knowledge in making decisions.
“I worry less about Zuker, who actually put all his influences on the table, than about judges who tell young women if they’d kept their knees together, they just wouldn’t have been assaulted,” Réaume said, referring to Alberta Justice Robin Camp, who last year told an alleged rape victim “why couldn’t you just keep your knees together?” (Camp is facing a disciplinary review before the Canadian Judicial Council in September.) “He’s not telling you where he gets that from. And it’s not a reputable source.”
Asked for her reaction, Gray said she was disappointed to learn about the appeal.
“Judges have been biased towards women for centuries,” she wrote in a text message. “This merely strengthens my opinion that expert opinions should be called by the Crown to explain to defence lawyers how trauma and memory work.”
Ururyar will be expected to re-enter custody Sept. 13, the day before his sentencing, Halfyard said. The terms of his bail stipulate that he live with his girlfriend, Alison Moore, in a Vancouver apartment they’ve just rented together.