Warning: This article contains details some may find upsetting and/or triggering.
Editor's note: A publication ban prevents the publication of any information that could potentially identify the complainant in this case.
The woman allegedly sexually assaulted by a Fergus businessman multiple times "is not prepared to tell the truth," "is not a shrinking violet," gave some "vague" testimony and made things up as she goes.
Those were accusations made by defence lawyer Brennan Smart Thursday during closing arguments Thursday at Robert O’Brien’s trial in Guelph.
O’Brien has pleaded not guilty to four counts of sexual assault for incidents which allegedly occurred between October 2021 and January 2023, which include touching the woman inappropriately.
One of the counts will likely be acquitted after Crown attorney Matthew Yassa made a request, in front of a packed room of the woman’s family, friends and supporters.
Many of those in attendance were wearing ribbons to show support for sexual assault survivors.
Smart said “there are significant credibility and reliability concerns” with the Crown’s evidence.
The Crown argues the lone complainant – whose testimony is at the heart of the evidence presented – was a “nervous, but confident, truthful and amendable” witness.
O'Brien did not take the stand in his defence.
Each of the two lawyers broke down the four incidents, one by one.
INCIDENT 1: October 2021
During a Halloween-themed event in 2021, it’s alleged O’Brien touched the woman’s buttocks.
The woman told the court O’Brien “kind of ran into me with his shoulder, into my side or my back and his hand kind of grazed my bum” in the parking lot of the establishment.
Smart said her evidence conflicts with his lone witness’ testimony, which he called “compelling,” commenting on the individual’s standing in the community.
“He remembers the night, but has no recollection of any kind of interaction (in the parking lot),” Smart said, adding the man also named other people getting a ride home by the woman. O’Brien wasn’t one of them.
He added there are inconsistencies with where the man’s vehicle was at the end of the night.
Smart said “these aren’t minor inconsistencies, they aren’t excusable inconsistencies or incorrect testimony.”
Even then, Smart said what the woman described does not “constitute a criminal offence, even if it were believed.”
Yassa argued the witness showed he “can be deceitful,” bringing up prior events that cannot be explained due to the publication ban.
Yassa added the witness was drinking on the night in question, and was offered a ride because he was intoxicated.
“Respectfully, it’s evident that (the man) is trying to protect his friend,” he said.
On the incident itself, the woman thought it happened because of O’Brien’s level of intoxication, and didn’t think much of it.
The woman testified she heard a comment made to the defence witness by O’Brien moments later, to the effect that Yassa said “it’s clear he knew he did something wrong.”
INCIDENT 2: SUMMER 2022
The woman testified O’Brien came behind her while she was sitting, and “kind of just placed his hand on my back,” and the hand “moved downwards” from the bottom of her back to her buttocks and she gave a shocked reaction to it.
Smart called the woman’s second allegation “vague,” adding the woman “can’t tell us anything,” including who was there at the time.
Yassa said the woman didn’t waver from her version of events amid cross-examination.
He said the elements of the offence were proven beyond a reasonable doubt.
INCIDENT 3: OCTOBER 2022
This is the incident the Crown has asked for an acquittal on.
The woman testified O'Brien made comments toward her at an event that made her feel so uncomfortable she left shortly after.
Yassa admitted the Crown didn’t meet its onus on the count, and asked O’Brien to be acquitted.
INCIDENT 4: JANUARY 2023
Smart said it is “impossible to accept (the woman’s) evidence,” where the woman alleges while at a social event, O’Brien touched her inappropriately.
She told the court O’Brien was “putting his hand up my shirt, and under my bra” and later put his hand inside her pants and touched her bum and groin area. This, while the two were playing a drinking game with a group of people.
“(The woman) says she froze when subjected to this groping by Rob O’Brien,” Smart said.
“That’s not what (the other Crown witness) saw.”
Smart said the man “saw a hand go around the waist, but didn’t see anything else,” including where O’Brien’s hand was touching.
He added the witness said the woman and O’Brien were engaged in the drinking game the group was playing.
Smart said the woman painted a picture of someone who was shocked and traumatized, and went to an Elora bar to wait for a ride home with her friend, who was shielding her from O’Brien.
Smart says the best friend not being there, as well as photos at the bar, depict otherwise.
“She wasn’t a shrinking violet, cowering in a corner waiting for her ride to come,” he said. “The pictures demonstrate this.”
Smart said while the woman dismissed the pictures as “misleading,” Smart argued “pictures are very reliable, they capture an image.”
“For her to try to say that is not her laughing or smiling just demonstrates the problem with her credibility,” he said.
“She’s not prepared to tell the truth.”
Yassa admits there were some inconsistencies with the evidence, but they “aren’t fatal” to the testimony, adding the woman provided an explanation.
“She testified the overpowering details, she remembers, whereas minor details she does not,” he said.
Of the photos, Yassa said Smart’s response “goes right to the heart of stereotyping the complainant of a sexual assault.”
Filing a $5 million civil suit – which has not been resolved up to this point – Yassa said it doesn’t impact her credibility.
He added if the woman was just in it for the money, why go the criminal justice route, which subjects her to a police investigation and prosecution out of her control.
Further, it risks an acquittal “because of a higher standard of proof.”
“(The woman) was touched by Robert O’Brien without her consent, and violated her sexual integrity,” Yassa concluded.
Judgment on the case is scheduled for March 28.
