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‘Believe the victim’ has no place in courts, judge says in sexual assault ruling

In this artist’s sketch, lawyer Joanne Mulcahy, left, questions Det.- Sgt. Jeffrey Attenborough, right, in front of Justice Anne Molloy at the sexual-assault trial for Toronto police officers (bottom, left to right) Joshua Cabero, Sameer Kara and Leslie Nyznik in Toronto on June 5, 2017.

Alexandra Newbould/THE CANADIAN PRESS

In the latest acquittal related to a high-profile Canadian sexual-assault case, a judge has found three Toronto male police officers not guilty of forcing sex on a heavily intoxicated woman, and argued that the rising movement to "believe the victim" has no place in the courts.

The complainant, a female parking-enforcement officer, testified that she had been so drunk or drugged that she couldn't move or speak during the January, 2015, incident, which occurred in a hotel room. But Ontario Superior Court Justice Anne Molloy said she could not rely on the complainant's testimony, which she found inconsistent, implausible at times and contradicted by – on the key issue of her capacity to consent – video recordings and a toxicologist.

"Although the slogan 'Believe the victim' has become popularized of late, it has no place in a criminal trial," Justice Molloy wrote in a 45-page ruling released Wednesday. She said the assumption that sexual-assault complainants tell the truth imposes a presumption of guilt on the accused.

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The trial seemed to echo other highly publicized sexual-assault cases of the past 18 months. Like the acquittal last year of former CBC broadcaster Jian Ghomeshi, in which a judge found the three complainants lacked truthfulness and reliability, it put a spotlight on the complainant's narrative of events. (The Twitter hashtag #ibelievesurvivors spread after Mr. Ghomeshi was found not guilty; NDP Leader Tom Mulcair was among those who used it.) The issue of capacity to consent while drunk was also front and centre in the acquittal this winter of a Halifax taxi driver.

Justice Molloy's ruling also was similar to two Superior Court rulings in Alberta and Ontario in the past nine months, in which convictions were overturned on the basis that trial judges had been unfair to accused men.

Kim Stanton, legal director of the Women's Legal Education and Action Fund, said Justice Molloy's ruling is the latest evidence that the criminal-justice system is failing victims of sexual assault.

"It's just so obvious over the last while that what we have isn't working," she said in an interview. "The difficulty with a decision like this is a chilling effect it has on survivors, because it does appear very difficult to get a conviction."

She was not critical of the judge's statement about refusing to automatically believe victims. Justice Molloy had also criticized defence attempts to use stereotypes about how the complainant dressed (a low-cut top) and behaved (going to a strip joint with several men), Ms. Stanton noted. And Ms. Stanton called the presumption of innocence and the criminal-law standard of proof beyond a reasonable doubt "necessary protections." But her group and others have begun a three-year project to find other models that might work better than the current criminal-law approach.

Harry Black, a lawyer representing Constable Leslie Nyznik, said the officer "looks forward to finally getting his life back." He remains under police suspension, Mr. Black said.

The officers are not facing disciplinary charges, and the professional standards unit will now review their suspensions, a Toronto Police spokesperson said.

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The ruling comes amid a volatile public debate on sexual-assault law, judges and policing. In June, the federal government introduced a bill, not yet debated, that would require that judges deem a complainant's sexual text messages or e-mails to be covered by a "rape-shield" provision, making it difficult to introduce them as evidence. More than 50 police forces have reviewed case files after The Globe and Mail revealed that some forces have unusually high rates of dismissing, as unfounded, complainants' reports of being sexually assaulted. In some of those cases, the complainant had been drinking.

Judges in particular have been taking heat. Justice Robin Camp resigned from the bench in March after a judicial disciplinary panel found that he had denigrated a sexual-assault complainant in a Calgary case by asking her why she didn't keep her knees together. Afterward, Ottawa passed a law requiring candidates for the federal bench to take a course in sexual-assault law.

Justice Molloy said that she did not necessarily believe what Constable Nyznik, the sole accused officer to testify, said on the issue of the complainant's consent. His testimony was stilted and sounded scripted, she said. He testified that the complainant had initiated sexual activity with the men, beginning with Constable Sameer Kara, caressing him while he was in a drunken sleep on the bed. The three officers, including Constable Joshua Cabero, had rented a hotel room after a police dinner, pub crawl and visit to a strip joint, so they wouldn't have to drive home, Constable Nyznik testified.

Justice Molloy noted that, in Canada's sexual-assault law, a complainant does not need her story corroborated by other evidence. But she said that, because of inconsistencies and implausible aspects of the complainant's testimony, most of it in areas irrelevant to the key issues of whether she consented or indeed had the capacity to consent, she looked for other sources of evidence to corroborate the prosecution's case. (On why she employed evidence irrelevant to the key issues, she said that if the complainant's memory or truthfulness could not be relied on there, it raised questions about her credibility on more important issues.)

The complainant, whose name is subject to a publication ban under a decades-old federal law meant to encourage sexual-assault victims to come forward to police, had testified, "I was powerless, I couldn't move, I couldn't talk, I couldn't stop what was happening."

She told the trial she had had eight drinks. But video recordings from outside the bar where she had left with several men, and a recording from the hotel lobby that she had then entered, showed her steady on her feet, chatting and laughing, the judge said. A toxicologist testified that the 200-pound complainant would have been only tipsy, based on the amount of liquor she said she had consumed over several hours. If she had been drugged, the effects would have been felt sooner, and would not have been intermittent.

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"Based on the complainant's evidence, I cannot be sure what happened in that hotel room," Justice Molloy wrote. "It is not safe to convict."

The Ontario Attorney-General's department declined to comment Wednesday on whether it is considering an appeal.

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