Trial Judges “Unusual” Approach in Sexual Assault Case Questioned on Appeal

Written on Behalf of Affleck & Barrison LLP

We’ve previously blogged about an unusual restitution order made by a Toronto judge in a high profile sexual assault case involving two York University students. An appeal court recently considered the conviction and sentencing stemming from those sexual assault charges, and the original trial judge’s order was heavily criticized.

A Discussion on How the Criminal Law System Treats Sexual Assault

In 2016, Mustafa Ururyar was found guilty of sexually assaulting a fellow student at York University. Mr. Ururyar was sentenced to 18 months in prison, three years of probation and ordered to pay $8,000 in restitution to the victim of the assault to cover her legal bills (an unprecedented order). Mr. Ururyar appealed the conviction and sentencing.

The central question on appeal was whether the Ontario Court Justice Marvin Zuker’s decisions to convict Mr. Ururyar, and sentence him to 18 months in jail, as well as his comments made about the accused during trial, showed bias or the appearance of bias.

Mr. Ururyar’s defense lawyer argued that Justice Zuker engaged in a “scathing and personal condemnation” of Mr. Ururyar and distorted the evidence. Justice Zuker’s judgment shows bias against Mr. Ururyar, is hard to understand, illogical, and fails to properly analyze the evidence.

The appeal hearing devoted time to discuss what the role of a judge ought to be during a time of national debate about how the criminal justice system has been prosecuting sexual assault cases recently.

The Crown prosecutor argued that Justice Zuker’s commentary on the meaning of informed consent, victim-blaming, rape myths and trauma were a result of the current social context, and public concerns in the wake of the Jian Ghomeshi scandal, as well as the recent sexual assault hearing in Alberta in which Justice Robin Camp asked the complainant why she couldn’t keep her “knees together”. The prosecutor noted that such recent decisions have caused the public to lose confidence in the administration of justice.

However, Justice Dambrot disagreed with Justice Zuker’s approach, stating that

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…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?’

Superior Court Justice Michael Dambrot called Justice Zuker’s approach “unusual”, and, over the course of the appeal hearing accused him of “showing off”, and stated that Justice Zuker’s reasoning appeared to be “unmoored”. He took issue with the “sarcastic tone” employed by Justice Zuker in the decision and found it “troublesome” that Justice Zuker had spent a significant amount of time commenting on sexual assault myths and stereotypes rather than making clear, factual findings about the facts at hand.

Justice Dambrot acknowledged that the procecutor’s explanation of Justice Zuker’s reasoning was persuasive; however, Justice Zuker himself had failed to explain why he had made his decisions, and did not clearly connect the rape myths he wanted to dispel with the evidence in this case.

If the conviction is ultimately overturned, and a new trial is ordered, another key issue in the appeal (whether it was appropriate for Justice Zuker to order Mr. Ururyar to pay the victim $8,000 in legal fees) might not be decided.

Justice Dambrot’s decision is expected on June 8. We will continue to follow developments in this matter and will blog about updates as information becomes available.

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