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Crown stays sexual assault charges in case involving homophobic juror

The Crown has stayed sexual assault charges against Toronto criminal lawyer Jill Presser’s client after the Ontario Court of Appeal ordered a new trial because a jury foreman’s homophobic jokes on a radio show would undermine the fairness of the justice system, reports the Toronto Star. Toronto Sun

“The decision not to re-prosecute really operates as a recognition of how serious these homophobic comments were and how negatively they did impact on the integrity of the justice system,” Presser, who represented Joshua Dowholis for his appeal, tells the newspaper.

Presser, principal of Presser Barristers, tells the Star that the outcome as a “real vindication” for her client, who is gay. 

“He really felt the issues — recognizing the effects of the homophobia in the justice system — are so important, that it was really worth hanging on and pursuing the appeal,” she says in the article. 

“In January 2014, Dowholis, an HIV-positive man, was sentenced to six years in prison. After serving the bulk of his sentence — he was credited for serving two years pretrial custody — Dowholis was already on parole when the Court of Appeal ordered a new trial," reports the Star.

The juror who made homophobic comments was the producer and co-host of a now-cancelled Toronto radio show, says the article. 

“As jury foreman, he was in charge of directing the jury’s discussions and acting as the spokesperson for the group,” reports the Star

“On air, he and the other on-air personalities chortled as they mocked gay men who visit bathhouses and the intelligence of the alleged sex assault victims. They snickered as they imagined an unnamed Dowholis’s excitement for prison showers,” says the article. 

On Friday, the Crown told a Toronto court that it wouldn’t pursue a new trial against Dowholis, says the article. 

In an interview with AdvocateDaily.com, Presser says the Crown did the right thing in dropping the charges against Dowholis.

“But today was about much more than just my client's encounter with the criminal justice system,” she says. “It's about the system's encounter with the rights of members of the LGBTQ+ communities in Canada.”

Presser says her client was convicted by a “blatantly homophobic jury.”

“That's why the Court of Appeal cried foul. And that's why today, the Crown did the right thing and abandoned the prosecution,” she tells the legal newswire. “This means that, in Canada, a homophobic trial, just like a racist or sexist one, will not lead to conviction. It will be thrown out.”

The Court of Appeal in October 2016 quashed Dowholis’ convictions, saying the juror’s comments were homophobic and “demeaning.”

“Such comments have no place in a fair and impartial justice system,” Justice Mary Lou Benotto wrote in a decision supported by two of the three presiding judges. 

“The reasonable observer would expect that a person who comes before the courts would be treated with dignity and respect, and not be publicly ridiculed by the person judging him,” Benotto continued. Read more

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