CALGARY — A man being retried after a judge's controversial remarks in a sexual assault case interrupted his accuser Monday while she was testifying against him.
"It's never too late to tell the truth," blurted Alexander Scott Wagar, 29, from the prisoner's docket, where he had been shaking his head and watching with his arms folded.
"Tell him to be quiet. Don't interrupt please," said Judge Jerry LeGrandeur.
Wagar was acquitted of sexual assault in 2014 by Robin Camp, a provincial court judge at the time, who decided Wagar's version of events was more credible.
Camp, who was later appointed to Federal Court, questioned the 19-year-old complainant's morals, suggested her attempts to fight off her attacker were feeble and described her as "the accused" throughout the trial.
Transcripts show that he asked her: "Why couldn't you just keep your knees together?" and said "Pain and sex sometimes go together."
The verdict was overturned on appeal and a new trial was ordered. It is being heard before judge alone.
In a Calgary court Monday, Wagar was blowing kisses back and forth with a woman who was sitting in the courtroom. After he mouthed the words "I love you," the sheriff ordered him to stop.
The complainant, who is now 24, told court she had been living in homeless shelters and had alcohol and drug addictions. When the alleged assault occurred in December 2011, she had been at a party in a Calgary home, she said.
She said Wagar had been "flirty" and was making it clear he wanted to have sex with her.
"He was telling me I was skinny and pretty and had a nice body," she testified.
Later, when she was in the bathroom, Wagar came in, locked the door and ripped her clothes off, she testified. She said the sexual assault lasted 15 to 20 minutes.
"He was starting to hurt me. I told him to stop," she said.
"I was scared. I was very drunk."
Defence lawyer Pat Flynn warned that his cross-examination of the complainant was going to be long.
He questioned her on her excessive alcohol use and her memories of the night in question, as well as on her subsequent retelling of he details to police investigators.
"At the time of the incident which occurred in the bathroom what was your level of intoxication? I'll go this way if I may with you. Black is blackout drunk and gray is in between, and you have white where you're sober as a presidential candidate for the United States. How drunk were you?" asked Flynn.
"I'm probably like a dark, dark gray. Not blacked-out drunk," the woman replied.
The lead investigator, police Det. Perry Patzwald, testified that DNA evidence taken from the complainant's jeans was tested and identified as Wagar's.
"It showed that there was a male 1 profile found on the jeans indicating there was semen identified. Later that day, I also received notification from the National DNA Data Bank that there was a hit ... Alexander Wagar was the contributor to the male 1 profile," Patzwald said.
The Criminal Code allows a judge to order a person convicted of designated offences such as murder, manslaughter or sexual assault to provide a DNA sample to the data bank.
Wagar's lawyer noted that the evidence did not deal with intent and only suggested a sexual encounter had taken place.
"The issue of consent is not derived from DNA evidence," said Flynn.
"We just know that a sexual act occurred," replied Patzwald.
Court heard an agreed statement of facts that said the encounter was on Dec. 14, 2011, that the complainant's clothing was seized for DNA analysis and that a medical examination noted two bruises on her back.
Wagar is expected to take the stand on Tuesday.
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