Judge doesn’t declare mistrial in College Street Bar sexual assault trial but don’t think that’s the end of it

It was for the best that the victim at the centre of the College Street Bar gang sexual assault trial didn’t come to court to hear sentencing submissions on Wednesday.

Instead, it was left to the woman’s mother, who delivered her own victim impact statement, to give some insight into her daughter’s state of mind, three years after the horrific event and three months after she’d testified.

“I’m no longer available for the things that make me feel like s—t,” read the mother, quoting her daughter.

The complainant, who cannot be identified because of a routine publication ban on the names of sexual assault victims, had held up fairly well under infuriatingly antagonistic cross-examination, though she remembered very little of what happened between the hours of 7:30 p.m. and 6 a.m., Dec. 14-15, 2016. A combination of alcohol and cocaine left her with only hazy, patchy recollection, beyond the adamant insistence that she’d never consented to sex with Gavin MacMillan and Enzo DeJesus Carrasco, respectively owner and manager of the Little Italy watering hole.

Had she been present for submissions — some of the jurors who in late November convicted the two men were in the courtroom — she likely would have been maddened all over again. Because they never stop, defence lawyers, trying to pummel the evidence to suit their purpose. And the purpose now, with Justice Michael Dambrot the finder of facts — juries don’t have to explain the reasoning behind their verdict — is to mitigate those facts as far as possible.

Was it one sexual assault or a continuum of sexual assaults over all those hours? The jury had come back hung on whether the accused had forcibly confined the victim at the bar, so that charge was subsequently dropped by the Crown, as was a separate charge of sexual assault against DeJesus Carrasco, from when he was in the bar alone with the woman earlier that evening. Both men were convicted of drugging — administering a stupefying substance — and sexually assaulting the victim.

Just about everything that occurred in that bar over those many hours was captured by surveillance video, apart from passages of time when she was in the washroom — and not by herself. That disturbing video was played repeatedly for the jurors — and for media, permitted to watch the evidence on monitors not visible to the public gallery. On occasion, it was manifestly clear that the woman was, at best, barely conscious, head lolling, limbs askew, her face sometimes pressed against the bar counter, other times her head violently pulled back by the hair.

For what the woman endured — an “intensely violent and lengthy sexual assault,’’ said lead Crown Rick Nathanson — MacMillan’s lawyer urged the judge to impose a sentence of between 12 months and two years, depending on how the bench assessed the duration of the assault; whether one specific attack or an ongoing ordeal of multiple assaults.

“It’s not forcible confinement, it’s unlawful confinement,” MacMillan’s defence lawyer, Sean Robichaud, pointed out, by way of correcting the Crown over a matter of language. “I don’t want to be pedantic.”

Except he was.

Robichaud cited previous cases to underscore the validity of seeking a sentence at the extreme low end of the spectrum, “far more aligned with precedent’’, which meant a nasty trip down memory lane of women who had their vaginas burned, were kidnapped, forced into sex trafficking. See? It could have been so much worse.

And poor MacMillan, why, he’s suffered so — his business lost, his savings, his reputation in the community, and vilified on social media. “The impact on his life has been catastrophic.”

Maybe he shouldn’t have sexually tormented a bar patron who was so oblivious that she was crashing into furniture.

Uma Kancharla, representing DeJesus Carrasco, took the court on a wordy reprise of the evidence, with her own spin. “There were so many times when she could have left,” Kancharla told Dambrot.

Really? She could barely stand without assistance.

Dambrot lost his patience with Kancharla’s reiteration of the evidence. “I assume you know that I was here during the trial? That I can’t be more familiar with the evidence?”

In an earlier reference to the video evidence, after Nathanson said the footage was “seared into my brain”, the judge concurred: “I can assure you I will never watch it again.”

Kancharla is seeking a sentence of between six months and 24 months, less six months for time served — 109 days spent in custody.

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An observer has to remind herself that the defence lawyers are doing their job, to secure the best outcome for their clients, now that they’ve lost the main event. They can ask for the moon — or an itty-bitty period of incarceration. The defendants had maintained, during trial, that all the sexual activity was consensual and that, further — to explain away the violence — the woman had wanted to be physically dominated, it was just playful BDSM. (There’s no audio on the tapes; it’s unknown what was said among the three individuals while all this was going on.)

The maximum sentence for gang sexual assault is 14 years. The Crown has asked for a top-range sentence of 12 years.

The only mitigating factor, in the prosecution’s view, as that the two men have no prior criminal record.

“They acted in concert throughout the night…for hour upon hour,” as the woman was forced into fellatio and vehemently digitally penetrated. “This was a violent, invasive and degrading sexual assault that went on for almost six hours,” by assailants who “no longer wanted sex gratification or could not achieve it.”

At times, Nathanson continued, “it was chillingly deliberate” and “predatory.”

The defence arrived in court armed with submissions for a mistrial, which were heard first. It was somewhat of a surprise, actually, that Dambrot didn’t accede to the request, in the aftermath of an Appeal Court of Ontario decision last week that has thrown the courts into chaos — determining that new rules which came into effect last September have rendered multiple jury compositions improper because those cases were already in the system and the new rules should have been applied retrospectively. Meaning, the defendants should have been permitted peremptory challenges of potential jurors, now abolished by a federal change to the Act. Dozens of convictions may be put aside as a result, with new trials ordered.

In this case, the jury returned with a verdict before the Appeal court ruling and that ruling was made in relation to a mandatory life sentence in a murder trial. Dambrot opined that the province’s highest court might not grant an appeal in this specific case anyway (MacMillan filed his appeal right after the decision was released.)

“It would be unwise for me to decide the outcome of an issue that hasn’t yet been finally decided,” said Dambrot. “I’m inclined to let the Court of Appeal sort this out rather than take it upon myself to do it by way of a mistrial. It’s not an overly easy issue to decide.”

But decide he did.

“I decline in this instance to declare a mistrial.”

Which won’t be the end of it.

Dambrot will pass sentence on Feb. 12.

Rosie DiManno

Rosie DiManno is a columnist based in Toronto covering sports and current affairs. Follow her on Twitter: @rdimanno

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