Canada Judge finds alleged domestic assault victim unreliable after she calls lawyer ‘beautiful’

06:40  14 september  2017
06:40  14 september  2017 Source:   National Post

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It was a case of domestic assault : A Vancouver woman had accused her Toronto ex-boyfriend of You are beautiful . Woolley called the decision “empirically pretty suspect” for relying on a single This opinion was shared by Toronto criminal lawyer David Butt, who specializes in sexual assault cases.

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miss-canada-lawyer: Toronto criminal defence lawyer Ines Gavran. © LinkedIn Toronto criminal defence lawyer Ines Gavran.

It was a case of domestic assault: A Vancouver woman had accused her Toronto ex-boyfriend of bruising her arm, confining her in a hotel room and stealing her cell phone.

And then, seemingly out of the blue, while on the witness stand Dzenita Omerovic commented on the attractiveness of the lawyer cross-examining her.

“May I just say something?” said the woman to Toronto criminal defence lawyer Ines Gavran.

“Ok,” said Gavran, to which Omerovic replied, “You are beautiful.”

It may have seemed like an innocuous compliment — particularly given that Gavran happens to have been the 2013 Miss Canada.

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But according to an Ontario Court of Justice judge it was evidence that Omerovic’s testimony could not be trusted.

“The record before me shows the complainant to be obsessive, occasionally vindictive, and insecure,” wrote Justice Joseph De Filippis in a late August decision that dismissed almost all charges against the defendant.

With regards to the complainant being “insecure,” the judge wrote that “her observations about Defence counsel’s physical appearance are instructive.”

“Wow, that’s quite a judgement,” said Alice Woolley, a University of Calgary law professor and president of the Canadian Association for Legal Ethics.

Woolley called the decision “empirically pretty suspect” for relying on a single exchange to diagnose a witness’ psychological character. The judge, in effect, was using a fleeting courtroom interaction to say that the witness is “not a good person,” Woolley said.

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“You generally do not draw legal conclusion based on the kind of person someone is, you draw it based on the evidence,” she said.

This opinion was shared by Toronto criminal lawyer David Butt, who specializes in sexual assault cases.

He noted that the witness would have been under enormous amounts of stress, and could have made the comment for any number of reasons aside from insecurity.

“This judge has certainly stepped outside, in my view, the parameters of appropriate characterization of a witness,” he said, adding that the judgement would have been perfectly sound without the observation.

The judge’s comments on the exchange were “unnecessary and they were over the line,” Butt said.

Prosecutors at the trial had relied heavily on testimony from Omerovic for the assault and confinement charges.

According to Omerovic’s version of events, she was assaulted by her ex-boyfriend in two instances at a Whitby, Ont., motel room.

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In Massachusetts, however, only the prosecutor or the judge can dismiss a domestic assault -and-battery charge. Alleged victims who believe that they have the power to "drop the charges" in a domestic -abuse case quickly find out that they are sadly mistaken.

In the first, she said he forcibly kept her in the room and held her down on the bed to prevent her from confronting a suspected romantic rival.

In the second instance, Omerovic approached her ex-boyfriend about suspicious calls on his cell phone. She said he tried to block her exit from the hotel room and forcefully grabbed her arm as she “broke free.” Photographs taken by Omerovic show bruising on her upper arm.

Ultimately, however, the judge ruled that a physical confrontation of some kind had likely taken place, but he could not convict because prosecutors had not proven beyond a reasonable doubt that the encounters had played out as Omerovic described.

Guesly Gemelus was still found guilty of two counts of breaching bail conditions that had forbidden him from making contact with Omerovic.

Contacted by the National Post, Gavran refused to comment on the case, saying “Justice De Filippis’ ruling and his assessment of the credibility of the complainant speaks for itself.”

• Email: thopper@nationalpost.com | Twitter: TristinHopper

How charges against police can reverberate through the courts .
Two days after Const. Michael Theriault was arrested and charged with aggravated assault, assault with a weapon, and public mischief in the violent beating of Whitby teen Dafonte Miller, he was supposed to take the stand in a Scarborough courtroom. As the sole witness in a routine impaired driving trial, his testimony could make or break the case. But, to the surprise of the Crown prosecutor, Theriault didn’t show up. That Crown also wasn’t notified of the charges and that a subpoena — not usually required for police witnesses since testifying is part of their job — might be needed given that Theriault has been suspended with pay.

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