Conviction in assault of Ryerson student
Separate charge involving intimate video transmitted via FaceTime is withdrawn
A Toronto jury has convicted a Dundas man of sexually assaulting a Ryerson University student two years ago.
After deliberating for a day, jurors found that Patrick Walsh, 22, ignored the young woman when she repeatedly told him she did not want to have intercourse in his mother’s Richmond St. W. condo on May 13, 2016.
“It was probably difficult, but it was the right verdict,” Crown attorney Brigid McCallum said Friday.
The young woman, whose identity is protected under a publication ban, left the courtroom after the verdict. Walsh, who is attending university in the U.S. on an athletic scholarship, and his family members appeared badly shaken and stunned by the verdict, said people who were in court.
At the start of the two-week trial, Walsh was also facing a relatively rare Criminal Code charge of knowingly publish, distribute, transmit, or otherwise make available an intimate image of the complainant, who did not give consent.
But midway through, in the absence of the jury, Superior Court Justice Kelly Byrne agreed to a defence request for a directed verdict of acquittal on the charge. When jurors returned to court, she told them the charge had been withdrawn without explanation.
Defence lawyer Zachary Kerbel argued there was no evidence that Walsh published or made available a “recording” of the complainant naked and vomiting, as she alleged. Her evidence was that Walsh transmitted video of the complainant in the bathroom using iPhone’s FaceTime application.
Yet in this case, Kerbel stated, there was no evidence that Walsh ever recorded the complainant. The term “recording” connotes a degree of relative per- manence and reproducibility that is not present in a live video chat, a transitory form of communication that ceases to exist once it is concluded, Kerbel argued.
The woman, 22, testified that while she was naked and throwing up in the bathroom of the condo, she saw the accused pointing his phone at her and heard laughing. “I was naked and ashamed and heartbroken,” she testified.
“I kept my head buried in the toilet bowl with my arms around my head.”
Walsh told the jury he used FaceTime to ask his friends for advice on what to do about the young woman being sick. The Crown tendered the FaceTime call log extracted from Walsh’s phone showing three FaceTime calls that evening.
McCallum argued filming an event and sending it to another person is a visual recording. “Any definition that excludes this scenario distorts the ordinary meaning of visual recording,” McCallum said.
When Walsh “FaceTimed the victim vomiting, he recorded her image and that image was then reproduced on his friend’s phone. The fact that technology has advanced to the point that this can be done instantaneously does not change that recording and transmission is occurring,” McCallum stated in written materials filed in court.
She noted the Criminal Code offence was made law in response to the highprofile cyberbullying of Rehtaeh Parsons, Amanda Todd and Todd Loik. Former justice minister Peter McKay said one of the goals of the bill creating the offence was to remedy the fact there was nothing in the code that addresses the contemptible form of cyberbullying that has emerged.
Walsh returns to court next week to set a sentencing date.