The St. Mike's Trial: A Wrongful Conviction in the Making?

The St. Michael's College School gang sex assault incidents, of which there were three in 2018, have culminated in guilty pleas, withdrawn charges, and one trial. That trial began yesterday in Toronto, March 4th, 2020.  The youth has pled not guilty and has presumably maintained his innocence since his arrest in December of 2018. He cannot be named under Canada's Youth Criminal Justice Act, but for the purpose of this journal, he will be referred to by the pseudonym, "Kirk". Kirk was implicated in a mobile phone 

recording of the worst of the three separate incidents. On October 17th, 2018 the young male victim was sodomized with a broom handle by a group of male teens. It has been referred to as a 'hazing' historically experienced to different degrees by new students. It is alleged that Kirk was seen in the video to be holding the victim's arms to help facilitate the assault. The other four teens in the video all pled guilty. The CBC's Adam Carter reported on that here in October of 2019.  Presumably all four of those boys were easily identifiable on the 22 second video as was the date and time the incident occurred, leaving no doubt as to the identity of the perpetrators and that the crime occurred. It was an open and shut no-contest case. Kirk's identity, on the other hand, is in dispute. As well as his alibi for the 5 o'clock hour on October 17th when the incident occurred, and for which the others pled guilty to.

What took place yesterday on the first day of Kirk's trial raises a few red flags and questions as to the integrity of his arrest and prosecution. It should be noted that as of writing this I am uncertain whether it is a pre-trial hearing, preliminary inquiry or day one of the trial. Regardless, the investigating detective on the case took the stand to give evidence and face cross-examination by the defence. The Toronto Star's competent and thorough court reporter, Alyshah Hasham, was in the courtroom taking notes. Her full accounting of what unfolded is here.  Detective Constable Daniel Sunghing testified that Kirk matched the facial features and description of clothing that can be seen in the video. Kirk's defence attorney, Geary Tomlinson, proposes the video was altered at some point as it had been uploaded to the internet made available to that possibility. That seems like a weak line of defence. One would have to see the video to know if the face in question was partially obstructed from the viewfinder of the mobile phone's camera, or blurry. If so, the next question would be if the detective was making his best guess in matching the student in the video to one who attended the school. Since we know the victim wasn't shown the video of his own assault (for good reason) to assist with perp identification, the 'best guess' seems like the most plausible scenario. 

Not only that, but Kirk has an alibi that he says proves he couldn't have been party to the assault because his public transportation Presto card use record shows that he was in transit during the time the assault took place. The detective's response to that was two-fold; first that he was not made aware of the alibi until more than a month after arresting Kirk, and when he became aware he attempted to corroborate the alibi with any CCTV footage. However, he said the public transit authority only keeps such footage no longer than one month. Therefore he was unable to corroborate the alibi. 

Supposing an argument can be made that Kirk's Presto card could have been in someone else's possession  while Kirk was at St. Mike's assaulting the victim, it would make it extremely difficult for Kirk to prove otherwise. This presents an unfair reverse onus to prove his innocence. Supposing Kirk really wasn't at the scene of the crime, that would lead to a question of Kirk's knowledge of the assault at the time of his arrest. Was he told by the detective the date of the crime he was being arrested for? Did Kirk actually tell the detective then that he couldn't have been there? Did the detective tell Kirk he was positively identified in the October 17th video? Did any of the others who pled guilty implicate Kirk? These issues seemingly weren't explored in yesterday's hearing and it's likely they may never be the way things proceeded. Shockingly, the Crown circumvented the alibi issue with the judge's permission by expanding the indictment's original date of October 17th, 2018 to a timeframe that includes October 1st, 2018 through October 31st, 2018. Not only does this have an extremely unfair effect of forcing the onus onto Kirk to prove he couldn't have been present for the assault on any day of October, but it plainly negates the previous un-contested convictions for the very same assault that is on record to have occurred on October 17th, 2018. Kirk should only have to answer to the issue in question for October 17th. It is unknown if the defence objected to this amendment or not. However one has to wonder why the judge would allow the amendment, objection or not. 

Things continue to get more precarious. The last issue addressed was a lawsuit filed by the victim in which Kirk is not named. It appears the judge had made no decision on whether or not questions could be asked about that lawsuit and court was abruptly halted for the day.

In summary, it appears Kirk may have been wrongly implicated in this crime. Identification is in question, a plausible alibi has been ignored, statements in a related lawsuit do not implicate Kirk, and the judge on the case appears to be generous in helping the Crown prosecutor reshape the case against Kirk however necessary. Classic ingredients for a wrongful conviction.

TAKE ACTION

What can you do? You can write, as a concerned Canadian citizen observing the case, to the Ontario Attorney General's office (Doug Downey) by emailing attorneygeneral@ontario.ca.  Cite this case (St Michael's College, Toronto, youth sex assault), the hearing date (Mar 4, 2020) the Toronto Star's article linked above, and share your concerns in particular on the Crown prosecutor amending the indictment. While there is no law against making such an amendment, this particular case appears to be a blatant abuse of process on the part of the Crown for the reasons mentioned above. It is in the public's interest to see the justice system does not foster unfair prosecutions that could possibly result in a wrongful conviction, particularly for a youth. Your complaint may become known to all parties in the case and could possibly result in action being taken to handle the case correctly moving forward. ​