Rapist dubbed 'clumsy Don Juan' gets new trial

Manitoba's highest court has overturned a sexual assault conviction and ordered a new trial for a man dubbed a "clumsy Don Juan" by the sentencing judge.

The three appeal court judges gave no explanation for their decision Wednesday, but are expected to issue written reasons later.

Kenneth Rhodes was convicted in February of sexual assault in the northern mining city of Thompson, Man., and was given a two-year conditional sentence.

Justice Robert Dewar sparked widespread public outrage when he called Rhodes a "clumsy Don Juan" and suggested the victim's clothing was provocative and meant that "sex was in the air."

Crown attorney Ami Kotler had argued that a new trial was necessary, but suggested overturning the conviction could shake public confidence in the justice system.

Principles not applied

"The victim is forced to testify again and may justifiably feel they haven't been treated fairly," he told the judges. "The accused person wonders why they have to go through this again.

"But the strength of our systemrelies on our ability to correct our mistakes."

Lawyers for both Rhodes and the Crown appealed the conviction based on how the judge considered the evidence.

They said Dewar did not apply "reasonable doubt" principles set out by the Supreme Court in cases where a judge is weighing conflicting evidence given by an accused and an alleged victim.

Kotler said it didn't matter whether Rhodes ended up being convicted.

"Whether it's a conviction or an acquittal, there is an issue of public confidence here," he said. "There is going to have to be a new trial."

Met outside bar

Court heard during the trial that Rhodes and a friend met a woman and her girlfriend earlier that night outside a bar under what the judge called "inviting circumstances."

The women spoke of going swimming in a nearby lake that night "notwithstanding the fact neither of them had a bathing suit," Dewar pointed out.

The foursome left the parking lot in a vehicle and headed into the woods, court was told. Rhodes began making sexual advances toward the woman, who initially rejected him but later returned his kisses.

Rhodes then forced himself upon the woman once they were alone.

Dewar noted that the woman was wearing makeup, high heels and a tube top with no bra underneath, and that she went willingly with her attacker.

Issue of fairness, says lawyer

Defence lawyer Josh Weinstein argued the judge dismissed Rhodes's version of events even though the evidence raised reasonable doubt.

"It has nothing to do with the salacious details," Weinstein said, referring to Dewar's controversial comments."It's a plain issue of trial fairness."

When Dewar's comments came to light, many called for him to be removed from the bench and the judge agreed not to hear any further sex-related cases. Several parties, including the government of Manitoba, lodged complaints with the Canadian Judicial Council which investigated.

The council concluded the comments were an "isolated incident" in the judge's career and decided no further discipline was required.

Dewar agreed his comments were "totally inappropriate" and apologized directly to the victim "for the hurt she must have experienced from my comments."

He has also undergone gender equity counselling and has resumed his normal duties.