Man found guilty of sexual assault granted bail pending appeal: lawyer

TORONTO — The lawyer for a Toronto man convicted of sexually assaulting a fellow student at York University says her client has been released on bail following a judgment last month that maligned so-called rape myths.

Mustafa Ururyar was found guilty of sexually assaulting Mandi Gray while they were both PhD students at York in January 2015. Gray waived the standard publication ban on her identity as the complainant in a sexual assault case.

Justice Marvin Zuker had previously revoked Ururyar’s bail ahead of the sentencing hearing for the case, which is scheduled for the fall.

In Zuker’s reasons for his judgment, he said myths about rape “should be dispelled once and for all,” and rejected Ururyar’s testimony that he had consensual sex with Gray.

“Such a story, scenario we heard from Mr. Ururyar from beginning to end begs credulity, a feeble, feeble attempt in hindsight that is unbelievable and incomprehensible,” Zuker said. “It never happened this way. None of it.” 

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Ururyar’s lawyer, Lisa Bristow, says the defence team is appealing the conviction, and made an additional application for her client’s release pending that appeal.

Superior Court Justice Michael Quigley granted the application Wednesday, and Ururyar was released from custody.

The Toronto Star reported that in court, the judge questioned whether Zuker had “a predisposed mind” that might be “a little too full” with academic information on gender-based violence to have delivered an impartial ruling.

The Crown is asking for a sentence of 15 to 18 months in jail, plus probation.

Ururyar was convicted of sexually assaulting Gray in his apartment on Jan. 31, 2015, after they had spent time together at two downtown Toronto bars. They had known each other only a short time and had a casual relationship when Ururyar raped Gray after forcing her to perform oral sex on him.

In his judgment, Zuker cited several social science articles and books about trauma and victim-blaming in cases of sexual assault. None of them had been introduced into evidence during the trial.

Osgoode Hall Law School associate professor Lisa Dufraimont said it isn’t unusual to see social science cited in judge’s written decisions, but Zuker’s remarks appear to contain a larger number than expected. Speaking generally about judges using social science research, she said problems can arise if a judge uses research that hasn’t been introduced as evidence.

“Sometimes judges draw conclusions from social science information they’ve researched themselves that the parties haven’t had an adequate opportunity to challenge through the adversarial process,” she said.

“That’s not to say that judges can never do it, and it all depends on what use the judge is making of it.”

She noted that there are judgments from the Supreme Court of Canada that support the rejection of rape myths mentioned by Zuker.

Gray’s lawyer David Butt said it isn’t unusual for judges to include research material that didn’t originate with lawyers in decisions.

“When a judge has the ultimate responsibility for making not only the correct decision but the best decision, it would be very odd indeed if we had a justice system that limited them to considering only what the lawyers have provided, no matter how mediocre the lawyers,” he said.

He added that the trial, which was spread over several months, has been an “ordeal” for Gray that will continue through Ururyar’s appeal.

Gray said in an email that the Crown asked for her input on Ururyar’s bail, and she consented to his release pending sentencing. However, she said she is disappointed that Ururyar is appealing the conviction.

“This merely strengthens my opinion that expert opinions should be called by the Crown to explain to defence lawyers how trauma and memory work,” she said.

Madeline Smith, The Canadian Press