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Appeal reaffirms need for procedural fairness: Handlarski

A recent Superior Court ruling setting aside a man's sexual assault conviction reaffirms the need for judges to always adhere to the fundamental principles of the presumption of innocence and procedural fairness in trials, says Toronto criminal lawyer Ryan Handlarski.

Justice Michael Dambrot overturned the 2016 ruling by now-retired Ontario Court Justice Marvin Zuker, who found the man guilty of sexually assaulting a woman, and ignoring his claims the sex act was consensual. Following the appeal ruling, the complainant stated she would never encourage anyone to report a sexual assault to police.

In his judgment, Dambrot said it appeared that Zuker reasoned “backwards from literature about rape and how rapists behave to the identification of the accused as a rapist.'' He called the judgment "incomprehensible." and ordered a new trial The matter returns to the Ontario Court of Justice to set a trial date on Aug. 4.

The appeal's ruling reaffirms some basic elements of criminal law, Handlarski, principal of RH Criminal Defence, tells AdvocateDaily.com.

"Protections given to people who claim to be victims of sexual assault are very important, but they are not more important than basic procedural and fair trial rights of an accused person that is presumed innocent."

He says Dambrot's ruling reaffirms judges must decide cases based on the evidence that is presented in court and that the parties involved have to be given procedural fairness.

"All that broke down in this case," says Handlarski, who comments generally and was not involved in the case. 

He says the ruling is very important to ensure that judges and juries will hear and consider the position put forth by the accused.

"Justice Dambrot did the right thing," Handlarski says. "Courts have to safeguard procedural fairness in trials. As a lawyer, you should be able to guarantee to your client that you will be listened to and that your submissions on behalf of your client will be considered."

He says Zucker's snap ruling after a final defence submission suggests the lower court judge didn't consider counsel's input, one of the many issues Dambrot focused on in his decision.

Dambrot said Zuker released a lengthy judgment sentencing the appellant to 18 months in jail and three years' probation immediately following submissions "without reviewing the sentencing materials filed by the defence.

"This was a simple trial," Dambrot said. "In order for the trial judge’s reasons to survive judicial scrutiny, they had only to explain to the appellant why he was convicted. In a case such as this one, the trial judge needed to do little more in his reasons than explain to the appellant why his evidence was not believed, why his evidence did not raise a reasonable doubt and why the complainant’s evidence was believed.

"Unfortunately, despite the length of the judgment, it fails this test," he said.

Dambrot ordered a new trial because of "inadequacies and excesses in the reasons for judgment of the trial judge" and to "preserve the integrity of the administration of justice."

The initial ruling contained material that was presented in court and "social science evidence that no one had quoted" during trial, Handlarski says. "Counsel for the defence has the right to make arguments on any evidence that is before the court and that can affect the accused. What occurred was nothing like that.

"The trial was very procedurally unfair."

He agrees with Dambrot that the original ruling was "incomprehensible."

The presumption of innocence, "is the most important aspect of a criminal trial, more important even than how victims of crime feel about the process," Handlarski says.

He adds a sexual assault trial is not necessarily unique in how the process can be very unpleasant for complainants and witnesses.

“A victim of a violent crime or a robbery is not necessarily less pleased about having to testify at a trial than a sexual assault complainant, but the process of calling evidence and having the opportunity for the defence to challenge evidence is central to the presumption of innocence,” Handlarski says.

"We can't lose sight of that," He says. "Justice Zuker's decision is an extreme of that, where the accused was not treated as an innocent person, where the accused was demeaned, the counsel was demeaned, the judge got the issue wrong by saying in his judgment that consent was not the issue.

"This is a very important appeal from my point of view because it often appears that the presumption of innocence is under attack, and this is an example of a full-scale attack," he says.

"I always guarantee to my clients that we will be heard although there is no certainty as to what the judge will do," he says. "And the accused was not heard in this case and that in my view was a grave injustice, in and among a number of other injustices that occurred."

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