Outbursts in courtroom as sex assault retrial begins for man acquitted by controversial Alberta judge

Drama in the courtroom marked the beginning of Alexander Wagar's second sexual assault trial, roughly two years after he was acquitted by controversial Alberta Judge Robin Camp.

Wagar is accused of raping a 19-year-old woman at a party, but was acquitted in 2014 by Camp who asked the alleged victim why she hadn't done more to prevent the attack several times throughout the trial.

As the trial got underway, a man who sat in the gallery for the first 20 minutes of evidence walked out giving the middle finger to the accused. Wagar and a woman — who came into the courtroom mid-morning — were also blowing kisses at each other during the proceedings.

Lethbridge assistant chief Judge Jerry LeGrandeur is presiding over the trial, likely to avoid any conflict for Calgary-based judges who would have worked with Camp.

Around the time of the alleged assault, Wagar and the complainant, JM — whose identity is protected by a publication ban — were both homeless, sometimes sleeping at shelters and sometimes crashing on friends' sofas.

'I tell him to stop'

JM described feeling panicked, drunk and scared when she was attacked in a bathroom at a party in 2011. 

Though she now has a place to live, an education in culinary arts and a job in her field, JM says back in 2011 she was homeless and struggled with drug and alcohol addiction. 

At that time, JM was friends with Wagar's brother who invited her to a party in a basement suite where a friend lived. The now 24-year-old says she ended up staying three nights.

On the third night, JM says a small group of friends and acquaintances were drinking together. She testified that she got so drunk she went to a bathroom to throw up. 

After that, JM said she played on her phone and eventually unlocked the door with the intention of leaving the bathroom. That's when she says Wagar came in.

He complimented JM, according to her evidence, before telling her he was going to "f--k" her.

"He rips my pants open, he pulls my pants down, puts me down on the bathroom counter," she described. 

"I start to use my hands to push him away, I tell him he's hurting me, I tell him to stop; he just keeps going." 

Outburst by Wagar

In the middle of JM's testimony, Wagar interrupted the proceedings with an outburst.

"It's never too late to tell the truth," he said from the prisoner's box.

Both the judge and Wagar's lawyer told him to stay quiet.

Shortly after Wagar and the woman who were earlier blowing kisses at each other in court, began smirking as JM described being raped.

The exchange went unnoticed and Crown prosecutor Janice Walsh continued questioning JM who said after she was assaulted, Wagar removed the rest of her clothing and put her in a stand-up shower and washed her. 

JM said she eventually came out of the bathroom, drank more and didn't leave the apartment because it was late, dark, cold and the buses weren't running.

Wagar's brother Lance called her a slut and told her he'd instructed his brother to assault her, JM testified.

"They just used me as a game and as a piece of meat."

She says she slept on the kitchen floor and left for the Mustard Seed the next morning where she reported the attack and was taken to hospital.

Alleged victim 'teary' and 'red faced'

JM had developed a relationship with Lindsay Winter, one of the frontline workers at the Mustard Seed shelter where she sometimes slept. Winter was the first witness to testify on Monday.

On Dec. 14, Winter got a call from JM who was crying. Winter told the court that JM said she had been sexually assaulted.

The next morning, JM met with Winter and other Mustard Seed staff who were able to convince her to report the incident to police.

"In my experience, [JM] was always a timid, quiet person," Winter testified. "She was very quiet at first, didn't open up initially, was tearing up." 

Winter said she called Calgary police for JM.

"She appeared upset, was crying at times, other times just appeared teary, red faced."

Wagar's DNA found on jeans

The trial's second witness was Det. Perry Patzwald from the sex crimes unit.

JM's jeans, testified Patzwald, were sent for DNA analysis and came back with a hit from a national database matching Wagar's — though defence lawyer Pat Flynn pointed out that information did not speak to consent, only that a sexual act had taken place.

Under cross-examination on Monday, defence lawyer Pat Flynn questioned why JM's memory was so good given she'd described being quite drunk.

"At the time of the incident, which occurred in the bathroom, what was your level of intoxication?" asked Flynn. 

"Black is blackout drunk and grey is in between and you have white where you're sober as a presidential candidate for the United States. How drunk were you?" 

"I'm probably like a dark, dark grey. Not blacked out drunk," she replied.

Flynn also attempted to poke holes at her credibility and asked JM why she didn't yell for help during the assault or put up more of a fight.

'Why couldn't you just keep your knees together?'

During the young woman's evidence at Wagar's first trial, Judge Robin Camp asked her several questions he later apologized for.

"Why couldn't you just keep your knees together?" asked Camp.

He also implied that the complainant — who was allegedly raped on a bathroom sink — could have prevented the attack by "sinking her bottom down into the basin."

Camp also referred to her as "the accused" on several occasions and stated that "sometimes sex and pain go together."

A new trial was ordered by the Alberta Court of Appeal in 2015 after Camp's inappropriate comments and questions came to light.

Camp's comments and subsequent complaints made with the Canadian Judicial Council led to an inquiry that took place in September. The woman was the first to testify at that hearing.  

Camp apologized for his comments

"He made me feel like I should have done something, like I was some kind of slut," JM told the panel in September.

The inquiry heard a week of evidence and its decision whether to remove Camp from his current position on the Federal Court is still pending.

By the time the Court of Appeal overturned Wagar's acquittal, then-Justice Minister Peter MacKay had promoted Camp to the Federal Court.

Camp's lawyer argued his client's ignorance has since been rectified by attending gender-sensitivity training, counselling and sexual assault workshops. 

Camp apologized for his comments at the inquiry, but the lawyer tasked with presenting the case against Camp's continued role as a judge said there is enough evidence to have him removed from the bench.

Flynn's cross-examination of the complainant will continue on Tuesday. Wagar will be called to testify in his own defence after that.

The trial is scheduled to last three days. 

• Follow the proceedings through our reporter at the trial. On our CBC News app? See the latest updates here.