TORONTO — A teen accused of sexually assaulting another student at an all-boys Catholic high school in Toronto argues he should be found not guilty because he was afraid he'd become the victim if he didn't participate.
The defence argued in closing submissions that the boy held down another student in a football locker room at St. Michael's College School on Nov 7, 2018, under duress while two others sexually assaulted the victim with a broom handle.
The Crown argued the accused teen has not proven his duress defence beyond a reasonable doubt and should be found guilty of gang sexual assault, sexual assault with a weapon and assault with a weapon.
The teen has pleaded not guilty.
The written submissions were recently filed in the high-profile case and will not be argued orally. The judge is set to decide the case on June 25.
The same three charges against the accused for a similar incident against a different teen in October 2018 were withdrawn last month after the judge found there was not enough evidence to proceed.
"It can be inferred that the locker room was a chaotic, 'Lord of the Flies,' environment," wrote the accused teen's defence lawyer, Geary Tomlinson.
"One where bullies made victims and victims became bullies."
No young person in the trial can be named due to provisions of the Youth Criminal Justice Act.
The accused teen testified last month that he was pushed by a "mob" of football players into the centre of a circle and repeatedly told to hold down his friend.
He said he held down one arm while another teen held the other. Two other teens then forced a broom handle into the victim's anus.
Another student captured the incident on his cellphone and the video was shared widely on social media.
The video, played in court, showed students yelling and laughing as the victim was sexually assaulted.
The defence said the accused teen had been bullied on four occasions at the school that fall, including being slammed to the ground and dragged by his feet.
Bullying was rampant at the school at the time, court heard, and acknowledged by St. Michael's itself in an exhaustive review.
"Whether by experience or through rumours, the implicit threat of violence — in particular, 'getting broomed' — was well-known amongst the members of the football team," Tomlinson wrote.
Court heard the incident occurred following a football game shortly after the coaches left the locker room.
"In the absence of any adult supervision, students who were targeted by other students were left to fend for themselves (as the onlookers were afraid to physically intervene)," Tomlinson wrote.
The prosecution disagreed.
"The Crown submits that on the accused's own evidence (taken at face value) he is guilty of all three offences," wrote Crown attorney Sarah De Filippis.
"By acknowledging that he intentionally helped others hold the complainant down, while aware the complainant was not consenting, in a context where the complainant’s pants were removed and he was penetrated by a broom handle, the accused’s evidence, taken at face value, establishes all elements of the offences."
De Filippis argued that the defence of duress isn't available to the accused on the two sexual assault charges. She argued the accused teen was an active participant in the sexual assault.
If the judge determines the teen can use the duress defence, however, De Filippis said his testimony about the school's culture was "absurd."
"The Crown submits that it is much more likely that the accused is exaggerating the extent of bullying at St. Michael’s College School in order to give credence to his defence of duress," De Filippis wrote.
She said there was no "air of reality" to the argument that the teen felt an implied threat of death or bodily harm during the incident.
"The only conclusion which can be derived from this evidence is that no reasonable person in the accused’s position on Nov. 7, 2018, would believe he was being forced to actively participate and hold the complainant down, or else he was going to be subjected to death or bodily harm," the Crown wrote.
She said the teen had many options at the time, but chose the wrong one.
"He could have walked away. He could have fought back," she wrote. "He could have asked one of the dozens of other non-involved students around him for help, or, at the very least, just stood alongside those dozens of others and tested his interpretation of the situation."
Three teens have already pleaded guilty to sexual assault with a weapon and assault with a weapon for their roles in the incidents. Each was sentenced to two years of probation.
One of them also pleaded guilty to making child pornography for recording one of the sex assaults.
Another student received a two-year probationary sentence with no jail time after pleading guilty. The charges against two others were withdrawn.
This report by The Canadian Press was first published May 20, 2021.
Liam Casey, The Canadian Press
