The lawyer for an anesthesiologist convicted of sexual assault is applying for a mistrial over a victim statement that never made it into the hands of police.
Defence lawyer Balfour Der said Friday he didn’t find out the statement existed until earlier this year, months after the trial had concluded.
Dr. Barry Wollach was found guilty in November 2019. No one directly involved in the case, including Crown prosecutors or the police officers who investigated the complaint against him, ever had the statement in question.
But Der said its absence interfered with Wollach’s right to a fair trial and a new one should be ordered.
The victim, who can’t be named due to a publication ban, wrote the statement for medical staff at the Sheldon M. Chumir Health Centre. She reported that Wollach had raped her the previous night.
She went to the Chumir for an examination and testing, concerned that she had been drugged. She said during the trial that she felt “woozy” at the end of her dinner with Wollach, and she wanted to go home, but instead he took her to his southwest Calgary townhouse and forced himself on her.
Wollach, who was suspended by the College of Physicians and Surgeons of Alberta after he was charged, said the woman willingly agreed to go to his home and she was receptive to his sexual advances. Results of the tests done at the Chumir came back negative, but a toxicologist said during the trial that some drugs can dissipate in as little as six hours.
Provincial court Judge Brian Stevenson said there wasn’t evidence to prove the woman was drugged but found that Wollach had sexually assaulted her.
“There is no air of reality to any suggestion that this was a case of mistaken but honest belief in communicated consent,” he said in his Oct. 21 decision.
Der said the missing statement included details that weren’t repeated in subsequent statements the woman made to police or during the trial.
He argued his cross-examination could have been affected by that content and said written details about what Wollach said and the woman’s reported effort to check whether he was wearing a condom could point to consent.
“We don’t know what she would have said under cross-examination,” Der said. “It surely could conceivably have been relevant to the defence.”
Der and Crown prosecutor Donna Spaner agreed the statement wasn’t inappropriately blocked from being part of the discovery process. They both said it’s unclear why police didn’t receive it in the first place.
But Spaner said Der’s suggestion that the statement could show consent is “absurd” given the context in which it was written.
“She certainly didn’t go to the Chumir within hours of the incident to tell them she had an enjoyable, consensual encounter,” she said.
Spaner argued the statement doesn’t change Wollach’s ability to defend himself against the sexual assault charge during trial. She said Der had the opportunity to question the woman based on a long list of evidence, including a lengthy police interview, detective’s notes and other statements.
“This is a case where a complainant has already been through a vigorous trial,” Spaner said.
Stevenson will announce his decision on whether to declare a mistrial on Sept. 14. If he rejects the application, another date will have to be set for sentencing.
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