Another delay in final arguments in ‘knees together’ sexual assault retrial

CALGARY – Closing arguments in a high-profile sexual assault retrial that was ordered after controversial comments by a judge have been delayed until Monday.

It was the second delay this week in the trial of Alexander Scott Wagar in Calgary. He was originally acquitted by provincial court Judge Robin Camp, who decided Wagar’s testimony was more believable than that of the 19-year-old complainant.

Camp called the complainant “the accused” throughout the 2014 trial and asked her why she couldn’t just keep her knees together. He also told her “pain and sex sometimes go together.”

The verdict was overturned on appeal and a new trial was ordered. The case is now being heard by Judge Jerry LeGrandeur.

Wagar’s lawyer was attempting to find a second missing witness Tuesday. The man, who didn’t testify in the original trial, has been unreachable. Pat Flynn was reluctant to conclude his case even though he said the chances of the man coming forward were slim.

“The overall and overarching principle here is a fair trial and that means fair to the community and fair to the accused. It’s not just one way,” said LeGrandeur.

“I’m going to proceed on the basis that you closed your case.”

LeGrandeur said he will reconsider if the witness shows up Monday and if Flynn can convince him there is material evidence involved.

The judge is also expected to hear arguments Monday on what weight he should give to evidence from a woman who testified at the original trial but has not been reachable for the retrial. He said earlier this month that admitting her testimony was necessary “to come to a fair verdict.”

The current trial has heard from both the complainant and the accused.

The complainant, who is now 24, told court she had been living in homeless shelters and had alcohol and drug addictions. She was at a party in a Calgary home when the alleged assault occurred in December 2011.

She said Wagar had been “flirty” and was making it clear he wanted to have sex with her. Later, when she was in the bathroom, Wagar came in, locked the door and ripped her clothes off, she said. The sexual assault lasted 15 to 20 minutes, she said.

Wagar testified that the sex was consensual. He said the two had been smoking pot in the bathroom before it happened and he decided to “go for it.” He also said he would never force himself on a woman.

“If she would have said ‘no,’ I would have stopped,” he said. “My mother put it in my mind since I was a kid that if a woman says ‘no,’ it means no.”

Under cross-examination, Wagar acknowledged the complainant “never said ‘yes’ directly.”

Camp is now a judge on the Federal Court. A panel of the Canadian Judicial Council is deciding whether to recommend he should be removed from the bench for his comments.

— Follow @BillGraveland on Twitter