A judge in a high-profile sexual assault retrial says it doesn't matter whether the complainant was planning to have sex with the accused 10 or 15 minutes before the alleged attack.
"She can change her mind in seconds. She can change it in the middle of consensual sex and it becomes unconsensual," Judge Jerry LeGrandeur said Thursday.
His comments came as he was hearing arguments about the admissibility of evidence from Alexander Wagar's first trial.
Wagar, 29, was acquitted in 2014 by Judge Robin Camp, who ruled Wagar was a more credible witness than the 19-year-old complainant. Camp called her "the accused" throughout that trial and asked her why she couldn't just keep her knees together. He also told her "pain and sex sometimes go together."
Camp is now a judge on the Federal Court. A panel of the Canadian Judicial Council is deciding whether to recommend he should be removed from the bench for his comments.
Defence lawyer Pat Flynn was seeking to have testimony from a missing witness read at the retrial as hearsay evidence. The woman testified she witnessed the complainant flirting with Wagar and that she had indicated she planned to have sex with him.
"The evidence is not complicated and is very simple," Flynn told LeGrandeur, who is hearing the retrial without a jury.
"The necessity is that there is no other witness to be able to provide that contradictory evidence."
Crown prosecutor Janice Walsh argued against the previous testimony being admitted. She pointed to the ruling by the Alberta Court of Appeal which overturned Wagar's acquittal.
"It is apparent the Court of Appeal had concerns about the first judge's grasp of the rules of evidence as they relate to sexual assault trials," Walsh said.
She told LeGrandeur that it should be assumed the earlier testimony was not "properly admitted."
"Sir, you have to take a look at that particular trial under the auspices under which it happened. The process of that trial is universally reviled."
LeGrandeur noted that the Crown in the first case did have an opportunity to cross-examine the witness.
"I'm not deciding that what was done in that case was reviled. Therefore, I have to make some sort of different decision on it," LeGrandeur said.
"I'm looking at what I have in front of me in this trial. That's it. Not what he had in front of him, other than the question of this (evidence)."
LeGrandeur expressed frustration with the lack of detail in the Appeal Court ruling. He pointed out it didn't identify what pieces of evidence in the original trial should not have been deemed admissible.
"The whole point is to get it right this time and to deal with the evidence as it's presented, and not measure it by the Court of Appeal generalized statement that doesn't identify what evidence should have been rejected," he said.
"They didn't say very much ... except that this was a debacle and shouldn't have happened this way," the judge added.
"They didn't do us the generosity of telling us what was wrong."
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