CALGARY -- A lawyer for a man facing a sex assault retrial after the original judge asked the complainant why she didn't keep her knees closed says the alleged victim had a case of "buyer's remorse."
Alexander Wagar, 29, was acquitted in 2014 by Judge Robin Camp, who ruled Wagar was a more credible witness than the 19-year-old complainant.
Camp called her "the accused" throughout that trial and asked her, "Why couldn't you just keep your knees together?" He also told her "pain and sex sometimes go together."
The Alberta Court of Appeal overturned the conviction and ordered the new trial. Camp is now a Federal Court judge. A panel of the Canadian Judicial Council is deciding whether to recommend his removal from the bench.
In his closing arguments Monday, defence lawyer Pat Flynn said there had been "evasiveness" in the complainant's testimony throughout the trial and Wagar isn't guilty of sexual assault.
"This was a consensual sex act between two young adults and only after the sex act did the young lady, in effect change her mind, sir," Flynn said.
"To be honest with the court, this is almost a buyer's remorse type of situation."
But Crown prosecutor Janice Walsh said that argument is based on an archaic and sexist cliche.
"The defence has brought before the court the outdated version of a woman scorned, that rape myth and stereotype -- a woman who has engaged in sexual conduct would then become a vengeful or vindictive liar," she said in her closing arguments Monday.
The alleged victim "testified without artifice, guile or embellishment." The young woman also didn't dodge any questions or make things up, Walsh said.
"The Crown urges the court to review the facts. It has proven Mr. Wagar's guilt beyond a reasonable doubt. The Crown goes further and says even, if for some reason, you do not believe the complainant is credible or reliable on key elements you must find the accused, in his own testimony, has shown himself to be guilty."
Wagar, who testified that the sex was consensual and the alleged victim was a woman scorned, also acted out in court some of the sexual acts the couple had performed.
Walsh said she had never seen anything like it in all of her years as a lawyer.
"The accused certainly put on a show for his audience -- this court. He mimicked and mimed. He showboated and interpretive danced his way through his performance because that essentially is what it was ... a performance," Walsh said.
"Mr. Wagar performed for the court a self-absorbed, self-aggrandizing piece of performance art, worth of recall around the water cooler but not worthy of belief."
Judge Jerry LeGrandeur told court he likely would not have a verdict in the case until January.
