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Superior Court orders new trial in Mustafa Ururyar sex-assault case

Mandi Gray waived a publication ban on her name in order to advance her cause against sexual assault.

JENNIFER ROBERTS/The Globe and Mail

Amid a heated national debate on sexual assault, an Ontario Superior Court judge has ordered a new trial for a man convicted of sexually assaulting a fellow PhD student, saying the trial judge relied on "rape literature" and his own opinions on sexual assault in his judgment.

In July of 2016, Mustafa Ururyar was convicted of sexually assaulting Mandi Gray in his apartment on Jan. 31, 2015. Mr. Ururyar's lawyers appealed, saying the trial judge, Justice Marvin Zuker, was biased against their client after reading academic research on rape. Justice Michael Dambrot agreed the judge had erred, outlining in his ruling that Justice Zuker did not explain why he dismissed Mr. Ururyar's credibility, evidence and testimony.

"I agree with the trial judge that we must be vigilant to reject pernicious stereotypical thinking about the behaviour of women," Justice Dambrot wrote. "At the same time, we must not adopt pernicious assumptions about men and their tendency to rape."

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Outside the courthouse, Ms. Gray, who waived a publication ban protecting her identity, warned other sexual-assault victims to not report their cases to the justice system.

"It's been 2 1/2 years since I was sexually assaulted and this sends a loud, clear message to other people who are sexually assaulted: Don't bother reporting because you're going to look at the next two, three years of your life being wrapped up in a system that really doesn't care about you," she said.

Video: Conviction thrown out for man accused of sexually assaulting Mandi Gray (The Canadian Press)

Canada's justice system, police forces and parliamentarians have been examining the way law enforcement and the courts handle personal bias, stereotypes and myths in sexual-assault cases.

These issues were in the spotlight after the 2016 acquittal of former CBC radio host Jian Ghomeshi on charges of sexually assaulting three women. In March, Federal Court Justice Robin Camp – who had asked a sexual-assault complainant why she did not keep her knees together – resigned after a disciplinary panel recommended his removal.

In May, the House of Commons passed a bill proposed by Conservative MP Rona Ambrose that required all prospective judges to take training in sexual-assault law.

Mr. Ururyar and Ms. Gray were graduate students at York University and had been in a casual relationship before the alleged assault. After a night of drinking, the two went to Mr. Ururyar's apartment, where Ms. Gray alleges she was forced to perform oral sex and then raped. Mr. Ururyar testified the sex was consensual and that Ms. Gray had been sexually aggressive throughout the night. Justice Zuker rejected Mr. Ururyar's account.

In the appeal ruling, Justice Dambrot said Justice Zuker had not explained why he had called Mr. Ururyar's evidence a "fabrication" and "a joke."

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He also criticized the judge on how he had assessed Mr. Ururyar's credibility in the trial, saying: "All witnesses, and not just rape complainants, are entitled to have their credibility assessed on the basis of the evidence in the case, rather than on assumptions about human behaviour derived from a trial judge's personal reading of social science literature."

The ruling said Justice Zuker's reasoning relied on the academic sources.

"In a case such as this, a trier of fact cannot reason backwards from literature about rape and how rapists behave to the identification of the accused as a rapist. But that appears to be what the trial judge did," Justice Dambrot said.

The problem with the trial judge's reliance on academic research was that it was not part of the evidence before the court, said Emma Cunliffe, a professor at the University of British Columbia's Peter A. Allard School of Law, adding that expert witnesses would have been more appropriate.

"Appeal court judges are worried that a trial judge may, for example, find an academic study that isn't good quality and rely on that," Prof. Cunliffe said, adding that a solution for this could be a government body that shares reliably sourced research with judges.

This case, she said, is an example of the gaps in the justice system that make women reluctant to trust it and report sexual assault.

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"The system needs to do a much better job at training everyone, from police to prosecutors, from defence lawyers to judges, to make sure that these investigations and trials are adequately resourced so we get them right in the first part," she said.

The Globe and Mail reported in its Unfounded investigation that one in five cases of sexual assault reported to police were dismissed as "unfounded" – a classification used when an investigating officer believes an allegation is baseless and that no crime occurred.

Justice Dambrot's decision means Mr. Ururyar will receive a new trial. A court date has been set for Aug. 4.

"This has been a trying experience for him emotionally and financially, and he looks forward to continue to protest his innocence at the retrial," said Mr. Ururyar's lawyer, Mark Halfyard.

In March, Ms. Gray said she probably would not participate in a new trial, saying she does not have the time or capacity to continue. But on Thursday , she said proceeding with a new trial is up to the Crown, adding, "It doesn't really matter what I want."

"I'm disturbed by the entire system. You won't be believed, there is no one to support you, and it will be a brutalizing process," Ms. Gray said. "The legal system will never be able to respond to sexual assault, the laws against sexual assault are merely symbolic, rape is perfectly legal in this country."

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