A judge who referenced research on gendered violence in convicting a Toronto man of sexual assault appeared to be biased against him, the man's lawyers alleged Tuesday at his appeal hearing.
Lawyers for Mustafa Ururyar argued their client deserves a new trial on seven grounds, including allegations that Justice Marvin Zuker's reading on topics such as rape and domestic violence "clouded his objective view of the evidence."
Any time a judge approaches a case with preconceived notions, even if those are based on compassion for sexual assault complainants, it raises "very serious concerns," Mark Halfyard told the court.
Ururyar is appealing his July 2016 conviction in the sexual assault of Mandi Gray, a fellow PhD student at York University with whom he had a casual relationship.
His appeal also challenges an order that he give Gray – who has waived the standard publication ban on the identity of complainants in sexual assault cases – $8,000 to help cover her legal fees.
In his ruling, Zuker found Ururyar forced Gray to perform oral sex and engage in sexual intercourse in the early hours of Jan. 31, 2015.
Ururyar's lawyers allege Zuker showed a "reasonable apprehension of bias" in Gray's favour, saying the trial judge had decided on a sentence for Ururyar before hearing submissions on the matter and made comments about sexual violence that suggested he was predisposed to believe complainants.
In one part of his decision, Zuker segued from discussing battered women's syndrome into a "scathing rebuke of the appellant's evidence," Halfyard said.
The judge hearing the appeal, Justice Michael Dambrot, said he found some of Zuker's comments troubling and suggested the trial judge had in at least one instance resorted to stereotypes about men. He also expressed concern that Zuker had explicitly spoken out about what he called rape myths.
"He spent a lot more time talking about rape myths than he did about the evidence," Dambrot said. "(Zuker's) task is to decide this case."
The Crown, meanwhile, argued the defence had no complaints about the judge's behaviour during the trial and only raised concerns about a possible bias once their client was found guilty.
Crown lawyer Danielle Carbonneau said Ururyar's trial took place at the same as the Jian Ghomeshi sexual assault trial, a period of heightened scrutiny on issues surrounding rape. Ghomeshi was found not guilty on all charges.
Zuker was aware of the public concern around sexual assaults at the time and simply signalling that in his judgment, Carbonneau said.
"The trial judge did not make any comments during the trial which would suggest that he was biased or that he had pre-judged the matter," prosecutors said in court submissions.
The materials Zuker referred to served to highlight some stereotypes already condemned in the case law cited in his ruling, the Crown said, and did not act as the basis for his findings.
Also at issue in the appeal is Zuker's decision to award Gray restitution for her legal fees, a precedent-setting move under the recently passed Canadian Victims Bill of Rights.
Ururyar's lawyers argued it was an inappropriate interpretation of the law.
The Criminal Lawyers Association has also opposed the order as an intervenor in the case, saying that people who are accused and then acquitted aren't entitled to similar reimbursement. The association also suggested that such costs will affect the decisions accused people make on how to proceed with their defence.
But the Crown said in its filings that Gray had the right to get her own counsel, particularly since the courts have recognized "that victims' privacy and equality rights are often engaged in sexual assault cases," and noted that the legislation does not restrict the type of restitution victims of crime can request.
The Barbra Schlifer Commemorative Clinic, an organization that offers support to women who experience domestic violence, also intervened in the case, supporting the order. The clinic argued that restitution is often given for therapy and counselling, and independent legal counsel is simply another form of support for complainants.
Gray, who attended Tuesday's hearing, said outside court that she probably wouldn't participate in a new trial if one was ordered for Ururyar.
"It's not worth it. I don't have another two years to take off of my life to be doing this," she said. "I just don't have the capacity to continue."