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Matthew McKnight holds arms with his mother as they walk into court in Edmonton on July 10, 2020. Lawyers for McKnight are looking to have his five sexual-assault convictions set aside and a new trial ordered.JASON FRANSON/The Canadian Press

Lawyers for convicted serial rapist Matthew McKnight say his five sexual-assault convictions should be set aside, and a new trial ordered on those charges, because the Crown prosecutor was “abusive” to Mr. McKnight in court and failed to act “in an even-handed way” with him during the trial.

“The Crown’s misconduct in this case jeopardized the appellant’s right to a fair trial and caused a miscarriage of justice,” reads the appeal factum filed by Edmonton law professor Peter Sankoff, who is working with Mr. McKnight’s trial lawyer, Dino Bottos.

The appeal, which the Alberta Court of Appeal will hear on Friday, alleges Crown prosecutor Mark Huyser-Wierenga was sarcastic and “used direct and cross-examination as a tool to voice his opinion that [Mr. McKnight] and defence witnesses were not to be believed and should be regarded with contempt.”

“The appellant’s trial was unfair,” the defence factum reads. “The convictions must be set aside and a new trial ordered as a consequence.”

The Crown says the convictions should stand, and is appealing Mr. McKnight’s eight-year prison sentence, asking the court to impose a longer term. During the trial, the Crown argued for a sentence of 22½ years.

Initially charged with three counts of sexual assault in the summer of 2016, Mr. McKnight at one point faced 26 charges of sexual and physical assault against 21 women. He stood trial on 13 counts of sexual assault. A jury convicted him on five charges, and found him not guilty of the other eight.

In July, 2020, Justice Doreen Sulyma sentenced Mr. McKnight to 16½ years in prison, but reduced that to eight years largely because of the totality principle, which says a sentence shouldn’t be unreasonably long for multiple offences. She made further reductions because of an assault he suffered on remand, changes he made to his lifestyle after being charged and what she found to be his “excellent chances to rehabilitate,” including a job awaiting him at his father’s investment firm.

During the trial in late 2019 and early 2020, the Crown alleged Mr. McKnight was a sexual predator, a popular and powerful figure in the Edmonton bar scene who used alcohol – and possibly GHB, the “date rape drug” – to incapacitate and rape women.

Mr. McKnight admitted to sexual activity with each of the women, but the defence argued it was consensual and the women were either mistaken or lying.

The trial lasted four months, and at times, emotions and tempers in the courtroom ran high. Testimony and cross-examination of the women who alleged sexual assaults regularly had to be paused as they became distraught, or, on occasion, lashed out angrily at Mr. Bottos during his lengthy and intense cross-examinations.

Mr. McKnight testified in his own defence for about 10 days, and interactions between him and the prosecutor, Mr. Huyser-Wierenga, also at times became heated and confrontational.

“Over the course of 13 weeks, Crown counsel ignored or forgot his duty ‘to act in an even-handed way’ with a ‘lack of animus … towards the accused …’ ” the defence appeal says, citing case law that says the Crown’s job is not to secure a conviction but to put evidence fairly before a jury.

“The Crown’s performance in this case fell far short of the standard,” the defence says.

Some questions in cross-examination were “not legitimate questions,” the defence added, but “simply a vehicle for the Crown to express his opinion of the appellant in front of the jury.”

The defence is also arguing the trial judge was mistaken in her interpretation of a section of the Criminal Code around whether evidence about certain sexual activity should be admissible at trial.

In his response, Alberta Justice and Solicitor-General lawyer Matthew Griener said prosecutors are “entitled and indeed expected to conduct vigorous cross-examination of defence witnesses, including the accused,” and that any missteps were not significant enough to have compromised the fairness of the proceedings.

Mr. Griener also included examples of “sarcastic and dismissive” questioning by the defence, and said the defence’s closing argument was “replete with rape myths and offensive language” that went uncorrected by the judge, and which Mr. Griener says is relevant in assessing the overall fairness of the trial.

“This was a hard-fought trial, and both sides pressed their cases forcefully,” the Crown factum reads.

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