Pending Sexual Assault Appeal Generates Debate about Complainants Retaining a Criminal Lawyer

Written on Behalf of Affleck & Barrison LLP

In 2016, Mustafa Ururyar, a York university student, was found guilty of sexually assaulting a fellow student and sentenced to 18 months in prison, three years of probation, and, in an unprecedented move, was ordered to pay $8,000 in restitution to the complainant for her legal bills.

While restitution orders can sometimes be made by judges in criminal cases to cover things such as therapy bills and lost wages, this marked the first time that an order has been made to cover legal fees.

The original decision is now being appealed.  The outcome of the appeal will likely have far-reaching consequences for both those accused of an offense, and well as complainants, and has already generated debate about the importance of complainants retaining their own legal counsel, particularly in cases involving sexual assault.

Appeal

The Criminal Law Association

The Criminal Law Association (CLA) has been permitted to intervene in the pending appeal and are expected to argue that is it not appropriate for a criminal court to order restitution for a complainant’s legal fees.

The CLA believes that this would be unfair since accused individuals who are ultimately acquitted do not have recourse to have the Crown (i.e.- prosecution) reimburse their legal fees. Additionally, the Association points to the fact that there are existing resources in place, such as the Victim Witness Assistance Program, that are intended to help complainants through the legal system.

The CLA’s Director stated that the complainant could have asked Crown counsel to answer any questions that she may have had about the proceedings, or about her legal rights, and that if she had any questions subsequent to that, she was free to retain counsel, however, to have the accused then pay her legal bills “wasn’t necessary”:

The general policy that an accused person bears his or her own costs, regardless of the outcome of the litigation, should also apply to a victim who chooses to avail his or herself of counsel.

Defense Counsel

Ururyar’s lawyers are expected to argue that the section of the Criminal Code that addresses damages does not address a complainant’s legal fees, which were “incurred at her own discretion”. If a complainant or an accused who has been acquitted seeks monetary compensation, that individual must go through civil court in order to obtain said compensation, therefore, the issue of restitution for legal fees ought to be dealt with via civil courts, and not criminal courts.

Further, defense counsel has stated that the original trial judge arrived at the $8,000 restitution sum arbitrarily and did not address Ururyar’s ability to may (a necessary requirement in restitution orders).

The Complainant

Mandi Gray, who chose not to have her identity masked by a publication ban, has stated that hiring a lawyer was the best decision she made, and one which she views as “completely necessary”. Gray’s counsel, a criminal defense lawyer, will be seeking leave to intervene in the appeal. He has pointed to the fact that courts, appropriately, order restitution for therapy where an accused is found guilty. Like therapy, legal representation is another “key service” that can help complainants cope with a legal process that can be demeaning, isolating, and traumatic.

Gray herself has stated that:

Without legal counsel, I would have been up against the university and the criminal justice system without a single ally. Rape costs a lot more than just emotional and career opportunities. . .  I hope future victims of the crime are empowered to retain legal counsel. This is a matter of access to justice and who should be paying for it.

The appeal is scheduled to take place on March 14th. We will continue to follow developments in this matter and will blog updates when more information becomes available.

If you are facing sexual assault or related charges, or have been a victim of an assault, contact the skilled Oshawa criminal lawyers at Affleck Barrison online or at 905 404 1947 for legal guidance. For your convenience, we offer 24-hour phone services and a free confidential consultation. We are available when you need us most.