Defence counsel's 'he too' comment during sex assault trial inappropriate: Manitoba judge

WARNING: This story contains details about sexual assault.

A Winnipeg defence team has been reprimanded by a Manitoba appeal court judge for making comments about the #MeToo movement during a sexual assault trial, including suggesting the accused was avictim in a "he-too world."

The comments were made during the 2021 trial of aman who was convictedon a charge of sexual assault, according to a Manitoba Court of Appeal decision delivered on Oct. 5 of this year.

During opening remarks at the jury trial, thedefence counsel told the court, "We live in a 'me too' environment. Anyone who is unhappy in their experience, in their relationship, in an episode of their lives claim they too have been abused,'" the appeal court decision says.

Defence counsel raised the #MeToo theme again during closing arguments at the man's trial, saying,"We live in dangerous times. An environment of blame. An environment of pointing to others.

"But rest assured in this me-too world, we're also facing a he-too world. Sometimes the person who stands in [the accused's] chair is also a victim," defence counsel said, according to the appeal court decision.

The decision does notspecify who from the defence team made the comments.Court documents show that the man was represented by Jessie Brar and Saul Simmondsathis sentencing, but Brar told CBC News on Sunday that he was not involved in the trial and the accused"had multiple counsel" at trial.

CBC reached out to Simmonds for comment but did not receive a response.

The manlater appealed his conviction, but that appeal wasdismissed by Manitoba Court of Appeal Justices Christopher Mainella, Jennifer Pfuetzner and Janice leMaistre.

After outlining the reasons for dismissal in the written Oct. 5 decision, Justice leMaistre addressed the defence counsel's comments about the #MeToo movement made duringthe trial, calling them "inappropriate."

"The 'me too' theme had no foundation in the evidence and no relevance to this case given the nature of the allegations," her decision says.

"Such submissions on perceived social assumptions are inappropriate and trial judges are encouraged to instruct juries to ignore such comments."

Victim was 'terrified and crying'

During the man's trial, court heard that he sexually assaulted a female friend at her home in September 2019, after she picked him up from a social because he was intoxicated and had been in a fight.

The man pleaded not guilty to the charge, arguing that the sex was consensual.

The woman, whose identity is protected by a publication ban, testified at trial that while at her home, the man began touching and kissing her, and that she told him to stop.

She testified that at one point, the man said, "Well if I'm going to get charged with sexual assault, it might as well be from you," according to the appeal court's decision.

"While the victim was terrified and crying, the accused had vaginal intercourse with her," the appeal court decision says.

"Recognizing that her efforts to fight him off had been unsuccessful, the victim became resigned, hoping that the assault would 'be over faster' if she 'went along with it.'"

The man testified in his own defence, telling the court that the victim initiated the sexual contact and denied that she had done anything to communicate a lack of consent.

However, he had initially told police he didn't remember what happened, the appeal courtdecision says.

No error by trial judge: appeal court

During his appeal, whichwas heard on May 5,he was represented by Brar and Katherine Bueti.

They argued his conviction should be dismissed on the grounds that the trial judge refused to admit evidence of prior sexual history between the accused and the victim.

They also argued the Crown made improper and inflammatory comments during its closing submissions "that resulted in significant prejudice by suggesting that [the accused] is not honest, by misstating the defence position and by denigrating defence counsel," the appeal court decision says.

The appeal court dismissed both grounds of the appeal.

While acknowledging some of the Crown's comments "should have been phrased better," the appeal court determined they "did not create an unfair trial."

The trial judge was also correct to dismissthe man'sapplication to admit the prior sexual history evidence, the appeal court decision said.

TheCriminal Codesays evidence of a complainant's prior sexual activities that are unrelated to the charges at hand can only be admitted with permission of a judge, and cannot be used to infer that the complainant is less trustworthy or more likely to have consented.

The man had claimed that he "had engaged in a 'romantic' relationship with the victim" before the assault and argued that was "relevant to the issues of consent and whether ... [he] had an honest but mistaken belief in communicated consent."

The trial judge concluded the man "had not established its relevance to either issue" and "ultimately, there was no basis to admit the prior sexual history evidence," the appeal decision concluded.

In her decision, leMaistre also pointed out that the "honest but mistaken belief" defence requires evidence that the accused took reasonable steps to ascertain contentand honestly believed the complainant communicated consent.

Thatdefence had "no air of reality" in this case, leMaistre wrote.

Support is available for anyone who has been sexually assaulted. You can access crisis lines and local support services through this Government of Canada website or the Ending Violence Association of Canada database. If you're in immediate danger or fear for your safety or that of others around you, please call 911.