“Starkly contrasting.”
That’s how Court of Queen’s Bench Justice Brian Scherman described the main evidence put to the jury over three days of testimony and argument about an incident from 1974.
Ultimately, the jury came back with a verdict of not guilty.
As the jury foreman read the verdict, the complainant put her head in her hands and cried.
The family of the accused also cried. Once court adjourned, they shook hands and embraced.
The reasons for the decision will never be revealed, as jury deliberations in Canada are secret.
What wasn’t at issue is that a sexual encounter occurred.
The accused admitted to such. In his testimony, though, he said the complainant initiated the incident when she put her arms around his shoulders and began to undo the buttons on his shirt.
In her version of events, the complainant said that the accused came into her bedroom unannounced, crawled on top of her and sexually assaulted her.
Despite the contrasting accounts, one from the accused and one from his accuser, the trial boiled down to two issues — reliability and consent. Those two issues took up much of the two lawyers’ arguments Wednesday.
Defence attorney Garth Bendig gave his closing arguments first.
He told the jury that the two accounts were consistent in terms of time, place and that the complainant was pregnant. From there, though, he said they “differ significantly.”
Bendig outlined that the complainant stayed in her house after the alleged incident, and that, according to his client, the relationships remained consistent for the next 26 years following the evening in question.
He addressed his own client’s recollection of events and including the admission that he had some trouble recalling memories since a mini-stroke suffered years prior.
“Some he’s able to retrieve with some concentration and thought,” Bendig said.
He described the situation at the police station, when his client denied any knowledge of even having a sexual encounter with the complainant, as one where the accused became “very flustered (and) confused.” Due to his hearing problems, “there are some comprehension issues as well.”
Bendig reminded the jury that on the way home from the police station, his client began concentrated and started to remember the memory.
He then turned to the complainant. He reminded the jury that she testified to a “lengthy history” of being on antidepressants, and had a nervous breakdown in 2016. He also reminded them about the medications she took for pain — morphine and oxycodone.
Crown attorney Kristen Hubbard also spoke about the accused’s testimony. She characterized it as inconsistent, not straight forward and detailed — down to details about what underwear the complainant was wearing — despite not even being able to recall the encounter when questioned by police.
That, she said, should call into question his credibility.
She also said that there is no medical evidence to back up the accused’s claim he could concentrate to recover memories.
She said that her client remembered the event so clearly because it was an important, traumatic event from her past that she had remembered and thought about over the years.
The accused, meanwhile, said he couldn’t remember, Hubbard said. She suggested to the jury that engaging in sexual activity with someone close to your wife while still married is something you would remember.
Therefore, she said, it is unlikely that he would have forgotten, but then suddenly remembered, in detail, what happened.
In his instructions to jurors, Scherman emphasized that there was no medical evidence presented that the medications the complainant took had an effect on her memory. In court, he said, the testimony of a medical professional is required to establish something like that.
Similarly, he said, the accused’s insistence he could recover memories, and the full effects on both his inability to remember and his ability to recall memories would also require medical evidence the jury did not have.
Bendig told the jury that while the complainant provided great detail, “she had difficulty controlling her emotions,” at times crying on the witness stand. He said those emotions don’t line up with how she testified to reacting when the alleged assault took place. She didn’t testify that during the incident she fought back, or cried, or yelled out.
He then asked the jury to consider what she said, the words she used.
“She didn’t say no,” Bendig said. “Her words were ‘what about Gloria.’”
Bendig urged the jury to consider an alternative interpretation of those words.
“What that leaves open is the interpretation of ‘I won’t tell if you won’t.’”
He argued that the complainant had borne a lot of guilt and that it was possible over the years her memory had been clouded.
It had been clouded, he said, by estrangement, medication, the loss of her son, medical difficulties, a mental breakdown and pain medications.
He asked the jury to think about their own memories from 46 years ago.
“How reliable are your own memories from that long ago?” he asked.
He then turned again to her decision to remain in the home with her alleged attacker.
“If she was truly raped,” Bendig said, “Would she remain in the home?”
Hubbard, though, argued that how she behaved after the incident didn’t matter.
She reminded the jury that the complainant didn’t want to burden the accused’s wife with the information about the alleged assault, or with the “same hurt” she was feeling.
“There’s no right time or way to report a sexual assault,” Hubbard said.
“You shouldn’t conclude something didn’t happen because of the way it was reported.”
She said the explanation the complainant gave made sense as to the timing of her reporting what happened.
“There’s not the typical way a sexual assault victim is expected to act,” she said.
“Silence is not consent. Lack of resistance is not consent.”
It’s not on a victim to fight back, she added, pointing out that the accused didn’t verbally confirm, in either version of the events, whether the complainant wanted to engage in sexual activity.
Hubbard argued that meant, in both cases, there was a lack of consent and a sexual assault occurred.
While instructing the jury, Scherman also emphasized that there is no typical victim.
Silence or a lack of resistance does not constitute consent, he said.
“There is no typical victim, typical assailant, typical reaction,” he said, cautioning the jury to not rely on sexual assault myths.
Instead, they were to determine whether the complainant consented and whether the accused had an honest but mistaken belief that the complainant had consented.
Thursday, the jury was left with multiple scenarios to consider as they weighed the evidence.
If they believed the accused, they would have had to find him not guilty.
If they didn’t fully believe the accused, but were still left with doubt, they had to find him not guilty.
Even if they didn’t believe the accused at all, they could still have found him not guilty.
In order for a conviction, Scherman said, the jury would have to be convinced beyond a reasonable doubt that the complainant had not consented and that the accused did not have an honest, but mistaken, belief that she had consented.
It was up to them, he said, to determine what was honest, credible and reliable.
“Belief is a state of mind,” he said, asking the jury to consider whether the accused may have believed the complainant said yes through words, gestures or actions.
“You must decide whose evidence is credible and reliable,” he said, adding that there’s “no magic formula” for who to believe.
“It’s for you to decide whether you see inconsistency.”
The jury was sequestered after they received their instructions, shortly after 11 a.m. They returned with a verdict about five hours later, at 4:10 p.m.
They asked two questions, including one about how to consider whether the accused had an honest but mistaken belief about consent.
Once the jury returned with their verdict, Scherman addressed them one last time.
He commended the jury.
“You took your duties seriously. You worked hard, yet struggled.”
He said in cases like this — with two starkly different accounts of what happened, coming up with a verdict “is an extremely difficult decision.”
