A former Toronto police officer is asking the province’s highest court Tuesday to overturn his conviction for sexually assaulting a young security guard, arguing the trial judge failed to consider that there was no evidence of anyone hearing the rape.
The Ministry of the Attorney General, however, argues the appeal should be dismissed because the defence arguments are “best understood as an attack on the reasonableness of the trial judge’s verdict.”
Ontario Court Justice Alexander Kurke, sitting in Gore Bay, Ont., convicted Roy Preston last year of one count of sexual assault and sentenced him to three years in prison. Preston was released from custody pending appeal.
In 2005, while he was a Toronto police constable, Preston was found guilty of assaulting a man and sentenced to 30 days in jail. The assault was captured on video and the case received widespread media coverage. He was fired from the Toronto Police Service and lost two appeals.
On the evening of July 31, 2015, Preston and a co-worker, who was 19 at the time, were working for a security company and attended a barbecue and bonfire on Manitoulin Island in northern Ontario. He was 46 and her training instructor and supervisor.
(The Star isn’t naming the woman. Though at the conclusion of the case, the woman obtained permission from the court to waive the automatic publication ban on her identity, material filed with the Court of Appeal says a publication ban is in effect.)
At trial, the judge accepted the woman’s testimony that Preston groped her breasts when they went to get firewood and after 2 a.m. entered the trailer where she was sleeping on a sofa and subjected her to a prolonged sexual assault.
Now 23, she testified she repeatedly told Preston “no,” asked or told him to stop, shouted several times and was crying. She left the trailer and drove to the hospital after the assault. Preston did not testify but the defence position was the sex was consensual.
In a factum filed with the Court of Appeal, Preston’s lawyer, Chris Sewrattan, argues a new trial should be ordered because Kurke “failed to properly consider a pathway to reasonable doubt. In particular, he failed to relate reasonable doubt to the absence of evidence that the sexual assault was heard by others. This removed from consideration an important part of the Appellant’s defence.”
During the five day trial, the defence called Margit Vadaszi, who continued to be employed by the security company, as a witness. “That person testified to not seeing or hearing any of the sexual assault sounds described by the complainant,” the defence factum states.
The complainant described a “noisy sexual assault in which she cried and shouted multiple times,” yet Vadaszi who was sleeping “15 feet away, separated only by a plastic curtain that did not touch the ground,” testified she did not hear any sounds in the trailer during the night, the factum says.
The judge rejected the witness’s evidence as unreliable. The other person in the trailer could not be located.
In the Crown factum, prosecutor Catherine Weiler argues that “deference is owed to the trial judge’s findings of fact, particularly his credibility findings.”
As well, “corroboration was not required to support the complainant’s account,” the verdict was supported by the evidence and the trial judge’s “extensive reasons … explained the path to conviction, addressed the live issues at trial and disclosed no legal error.
“This appeal should be dismissed.”
Betsy Powell is a Toronto-based reporter covering crime and courts. Follow her on Twitter: @powellbetsy