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Accused in ‘knees together’ sex-assault retrial found not guilty

A man whose acquittal on a rape charge was thrown out because a judge asked the complainant why she didn't keep her knees together has been found not guilty a second time.

In contrast to the first judge who found Alexander Wagar not guilty, and who is now facing dismissal for his conduct of the trial, the judge who conducted a retrial did not insist that an absence of fighting back showed she consented. But Alberta Provincial Court Justice Jerry LeGrandeur said the complainant was inconsistent and lacked credibility at times when she testified about being raped in a washroom in 2011. As a result, in a case in which the only direct evidence of what happened came from her testimony and Mr. Wagar's, who the judge found also lacked credibility at times, he said the prosecution did not meet its burden to show guilt beyond a reasonable doubt.

Mr. Wagar's lawyer, Patrick Flynn, told reporters after the acquittal that his client had spent more than two years in custody and was the real victim in the case. His mother died in the past weeks and he did not see her beforehand, he said.

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"I hope people consider Mr. Wagar, who for five years has had the stigma over top of him and twice now, with different witnesses, different evidence, has been acquitted." He added: "I don't want to be flippant, but would you rather have your judge make the right decision and say something inappropriate or to be politically correct and get the wrong decision?"

The Wagar case highlights a justice system struggling to move beyond myths and stereotypes around sexual assault and achieve fairness for complainants while also preserving the presumption of innocence. And Justice LeGrandeur addressed that struggle head-on.

"The trial judge and consequently the court, and the administration of justice have been criticized by some segments of society, and many have asserted that the complainant has suffered an injustice by the manner in which the court process unfolded in the first trial in this case," he wrote in his ruling on Tuesday. "I take no issue with any of those concerns.

"However, none of those considerations mean that the case now before this court can be proven by evidence of a lesser quality and weight and none of those things mean that the evidence to be scrutinized to a lower standard than is required in all criminal matters, and none of those factors change the presumption of innocence and the duty of the Crown to prove the case beyond a reasonable doubt."

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He said that an explicit "yes" is not required for consent, and nor is a direct "no" required to show an absence of consent. And similarly, an accused does not have to explicitly ask for permission before initiating sex.

"The question in this case is not whether the accused asked for permission from the complainant before initiating sexual contact, although asking or not asking may be of some evidential value when considering the evidence as a whole," Justice LeGrandeur wrote, adding: "An individual may be consenting without verbalizing the same and may not be consenting despite not verbalizing or demonstrating the absence of consent." But the prosecution did not prove its case, he said.

Crown prosecutor Janice Walsh expressed concern the ruling may discourage others from reporting sexual assault, and said her office will consider whether to appeal the decision. "Some of [Justice LeGrandeur's] comments certainly give pause for future cases of sexual assault," she told reporters without giving examples.

She said the complainant has "frailties," and noted that the retrial came five years after the alleged assault. "These types of inconsistencies, from the Crown's perspective, there are innocent explanations."

The Wagar case is not the only one in which judges have made comments in which their views of consent in sex-assault cases, and of how victims react, were deemed by higher courts to be out of step with the current state of the law. Several other Alberta judges in the past three years have made similar mistakes, in the view of higher courts. Conversely, in a recent case, the Alberta Court of Appeal admonished a lower-court judge it felt came close to putting the burden on an accused man to prove himself innocent, rather than on the prosecution to prove guilt beyond a reasonable doubt.

In the Wagar case, the Alberta Court of Appeal threw out Justice Robin Camp's acquittal, ruling that he had relied on stereotypes about sexual-assault victims in his reasoning. Later, a disciplinary panel recommended unanimously that Justice Camp, currently a member of the Federal Court, but not hearing cases, be removed from the bench.

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Janine Benedet, a law professor at the University of British Columbia's Allard School of Law, said the result is not unusual in a trial that came down to a credibility contest.

"I think the complainant in this case was an extraordinarily brave and persistent young woman to have to have gone through this twice," she said in an interview. "And it's extraordinarily difficult to secure a conviction in cases where you have only one complainant and you need to believe her. The fact is, most complainants are not perfectly consistent in their account of what happened given that what they're describing are traumatic and unexpected events."

Mr. Flynn, Mr. Wagar's lawyer, called Justice Camp "a very fine judge."

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