The jury in the EMDC trials has found one former guard not guilty.
The jury in the EMDC trials has found one former guard not guilty.
Former high profile Sarnia gymnastics coach Dave Brubaker has been found not guilty of sex-related charges.
Justice Deborah Austin handed down her decision at the Sarnia courthouse Wednesday morning.
There was applause from the gallery in the courtroom and Brubaker hugged his wife when the verdict was given.
The 56-year-old Brubaker had pleaded not guilty to charges of sexual assault and invitation to sexual touching that were laid in December 2017.
The charges covered the period from 2000 to 2007 and related to a female gymnast who was under 16 during part of that time.
Brubaker’s lawyer, Patrick Ducharme, told reporters outside the courthouse that his client is relieved but there are more steps to take.
“Well, we try to clear his name in every respect. We deal with the authorities — we’re going to deal with Canadian authorities, we’re going to deal with the gymnastic authorities, we’re going to tell the police above the officer exactly what he did and why we think it’s improper,” said Ducharme. “And we’re going to see whether or not anybody has the courage to look at how [Mr. Brubaker’s] life was turned upside down, perhaps for an absolutely invalid reason.”
Judge Austin criticized the Sarnia police officer who took on the sole investigative role in the case when he had close family ties to the complainant.
Ducharme said the officer can’t pay back what he’s done to Mr. Brubaker.
“He’ll never give [Mr. Brubaker] an apology. Does he owe him an apology? He owes him a lot more than that,” said Ducharme. “I think we should do something about making a full and comprehensive report about this officer’s activities because I think it extended well beyond what he should’ve done, and I think the authorities should look at it.”
Gymnastics Canada issued a statement immediately after the verdict saying it will now conduct its own internal investigation under its code of ethics and discipline policies.
CEO Ian Moss was also at the courthouse and talked to reporters outside.
“When the criminal action proceeded, he was a member, so he was then suspended. Since then his membership has lapsed, so my understanding is he does not have any current membership in the organization at any level,” said Moss. “So the intent of the investigation is to ensure that he is unable to become a member again until we determine the outcome of the investigation.”
Brubaker coached gymnastics for 41 years, and was at Bluewater Gymnastics for 32 years. He is the former director of the Sarnia club, the former women’s national team director for Gymnastics Canada, and was the country’s head gymnastics coach at the Rio Olympics in 2016.
SARNIA, Ont. — A former high-ranking gymnastics coach has been found not guilty of sexual assault and sexual exploitation.
Justice Deborah Austin handed down the decision for Dave Brubaker in a Sarnia, Ont., courtroom today.
Brubaker, the former head coach of the women’s national team, was accused of sexually assaulting a young gymnast years ago.
At the beginning of the trial in October, the woman who is now in her 30s testified that Brubaker would kiss her on the lips to say hello and goodbye starting when she was 12 years old.
She also said he touched her inappropriately during sports massages and spooned her in bed while taking naps before practice — allegations Brubaker strongly denied.
He told the court that while he did kiss the complainant on the lips, it was meant as a fatherly gesture and not a sexual one.
He also said he never took naps with the young woman, and that the massages he gave her were necessary to alleviate the aches, pains and injury that come with being a gymnast at an advanced level.
Brubaker’s lawyer, Patrick Ducharme, argued that the young woman was bitter because she didn’t make it to the Olympics, unlike some others Brubaker coached.
Upon Brubaker’s arrest in December 2017, he was placed on administrative leave by Gymnastics Canada.
The investigation into Brubaker and the police interview following his arrest were called into question during the trial after it was revealed that the sole police officer investigating the coach was related to the complainant.
Over the course of the investigation, the officer made the complainant the godmother of his newborn child. Ducharme argued that this compromised the probe, and said video of a police interview should not be allowed into evidence.
In the video, Brubaker was seen writing a letter of apology to the complainant, another young gymnast he used to coach, and his wife.
The judge decided the video was admissable, but said she would be cautious when considering it as evidence.
Ducharme suggested that the officer fed the complainant allegations to bring against Brubaker.
SARNIA — A monkey wrench was thrown into the middle of David Brubaker’s sexual assault case as soon as the investigating officer took it on, the judge said.
The 10-year Sarnia police officer was way too close to the complainant, a former nationally ranked gymnast coached by Brubaker, to have the required perspective to conduct an unbiased investigation into sexual abuse allegations made against the former national gymnastics coach, said Ontario Court Justice Deborah Austin.
It was a major reason for her decision to acquit Brubaker of sexual assault and invitation to sexual touching on Wednesday.
But the officer forged on, making suggestions to the complainant — whose identity is protected by court order and by extension the officer’s name as well — during an interview where she struggled to remember what happened between her and her coach. The officer told her to tell him about it “like I never heard anything,” an indication he had already discussed the issues with her.
He did most of the talking during his interview with Brubaker, who flatly denied any sexual attraction to the gymnast, acknowledged his life as an Olympic coach was over because the officer was charging him, and agreed he had “crossed a line”, although it wasn’t clear what line he was referring to.
The officer immediately relayed the fruits of his police interview as well as a letter of apology from Brubaker to the complainant and another former gymnast, even though the officer should have known what he was telling them was evidence.
As well, the officer neglected to tell his superiors he had been the best man at the complainant’s wedding, the complainant was a relative of his wife and she is the godmother of his child.
And, most shocking, he didn’t tell the Crown attorney any of this until the three days before Brubaker’s trial was set to start.
There was “a blurring between professional and personal involvement,” Austin said in her decision. The officer’s lack of impartiality “had a tangible affect on the Crown’s case.”
“It’s hard to understand why an experienced and competent police officer would chose to handle every aspect of the investigation himself,” Austin said.
Applause broke out in the courtroom when Austin announced she was acquitting Brubaker. A relieved Brubaker, who was executive director of Bluewater Gymnastics, hugged his sobbing wife Liz.
The couple and their supporters left the courthouse quickly, followed to their cars by a crowd of media. One family member asked Brubaker when he was going to get his passport back.
Brubaker made no comment to anyone, leaving the talking to his defence lawyer, Patrick Ducharme, who said that while the acquittal is welcomed, “we have lots of steps to take now. This is not over.”
The goal now is to restore Brubaker’s reputation, he said.
“We’re going to deal with the Canadian authorities, we’re going to deal with the gymnastics authorities, we’re going to tell the police above the officer what he did and why we think it’s improper,” Ducharme said.
“And we’re going to see whether or not if anybody has the courage and the character to look at the opposite side of this now as to how his life was turned upside down, perhaps for an absolutely invalid reason. “
The case surrounded the relationship between the complainant, now 31, who was a shining star in the gymnastic world when she was coached by Brubaker and his wife when she was 10 to 19 years old.
By extension, the culture of the gymnastic world and the uncomfortably close relationships between coach and athlete went under the microscope.
The complainant saw the Brubakers as her path to athletic greatness, so much so that she moved to Burlington with their family between ages 12 and 14, before everyone moved back to Sarnia.
Austin heard about kisses on the lips, “a handful” of times the complainant was touched on the buttocks as she was getting out of Brubaker’s car, spooning during naps with touches to the belly, and massages that came close to her private areas.
But there was also evidence the complainant suffered injuries requiring massage treatments. The complainant agreed during her testimony she was bitter about the abrupt end of her gymnastics career.
Brubaker denied all the allegations and stuck to his guns that he had no sexual attraction to the woman.
Ducharme said the judge’s ruling should trigger “a full and comprehensive report about this officer’s activities because I think it extended well beyond what he should have done and I think the authorities should look at him.”
Asked if the officer owed Brubaker an apology, Ducharme said, “He owes him a lot more than that. He can’t pay back what he’s done to Mr. Brubaker.”
A Sarnia police spokesperson said the force is reviewing the case, but no investigation has been launched. “The department will look into exactly what the court said as well as the actual investigation,” said Const. Giovanni Sottosanti. “There’s nothing we could have done during the actual trial.”
Brubaker has new problems to wrestle with. Ian Moss, chief executive of Gymnastics Canada, was in the courtroom to hear the decision and announced after that the organization is opening its own investigation into Brubaker’s conduct.
As well an investigation was announced earlier this week into Brubaker’s wife and fellow coach. Moss said that probe will look at “any violation of our code of conduct and ethics policies.”
Dave Brubaker was suspended from coaching when he was charged and his membership with Gymnastics Canada has lapsed. He couldn’t become a member again until after the investigation, which is expected to take about a month.
“These are very difficult times, these are very difficult stories and conversations,” Moss said. “We know we want to maintain the sanctity, the beauty of the sport and we know we have work to do.
“Every sport has work to do there. And we are vigilant in ensuring we reduce the opportunity for any level of abuse to occur in our sport.”
With files by Louis Pin, Sarnia Observer
A dramatic end to the trial of two former Elgin-Middlesex Detention Centre (EMDC) staffers freed one man, sent another one back to court and left the mother of a third furious at the justice system.
After two days of deliberating, a jury Tuesday night acquitted former operations manager Stephen Jurkus of failing to provide the necessaries of life to inmate Adam Kargus, who was murdered in his cell Oct. 31, 2013.
But the jury could not reach a decision on the same charge against co-accused, former correctional officer Leslie Lonsbary.
That led to the declaration of a mistrial and will see Lonsbary back in court again next week.
“As a family, we are really disappointed,” Kargus’s mother, Deb Abrams, said shortly after a verdict was reached about 9 p.m. Tuesday.
“We feel like no one really cares. There is no justice and that verdict and lack of a verdict means there’s not going to be changes, and that’s what we wanted for our son, for other inmates.”
Kargus, 29, of Sarnia, was serving 90 days at the provincial jail in London after being convicted of using false identification to get tax refunds and cellphones.
His EMDC cellmate, Anthony George, had a long history of violent crimes triggered by alcohol.
George was suspected of being drunk and having homemade alcohol in his cell on the evening of Oct. 31, 2013.
Correctional officer Greg Langford testified at the trial that he wrote “possible brew” in the control room he shared with Lonsbary.
Langford also testified he told Jurkus, an operations manager working on a different floor, about George being drunk.
The Crown alleged Jurkus took no action, such as telling anyone about George’s condition, moving one of the inmates out of the cell or conducting a search for the illicit alcohol, or brew.
Jurkus’s lawyer, Pat Ducharme, argued that his client had only a slight amount of information on which to act, and wasn’t in charge of that unit at the time.
“It’s been a long road, it’s been about six years for Mr. Jurkus,” Ducharme said after the acquittal. “He’s obviously happy this has been lifted from his shoulders. He felt strongly along he was not guilty of this offence.”
Kargus never should have died, Ducharme said, and Jurkus feels for his family.
“Mr Kargus should have been protected. Our simple defence was it did not relate to anything Mr. Jurkus did.”
The Crown alleged Lonsbary also took no action, despite the note about the possible brew and despite hearing noises in the unit when George was beating Kargus to death.
The jury saw video surveillance showing Lonsbary walking toward, but not into, the unit and later on, closing the door to the control room where he was stationed that night.
No one checked the unit for an hour and a half, including the hour of the assault.
The jury spent about six hours deliberating Monday, but just before 2 p.m. Tuesday, sent a note to Superior Court Justice Jonathon George saying they had reached a decision on one accused, but could not reach a unanimous decision on the other.
The note did not mention the accused by name.
The note called the division “serious” and “constant and consistent.”
“A decision is unlikely to occur,” the note read.
Justice George reminded jurors a verdict does not have to be unanimous, but that is the desirable outcome.
The jury was sent back to deliberate and sent a second note about 5 p.m. about legal aspects of the charge.
After legal arguments and a supper break, George gave them more details about 7:30 p.m.
But about 20 minutes later, the jury sent another note to the judge.
“There is no real change in the division of opinion,” the note read.
That prompted debate among counsel, with defence lawyers seeking a mistrial and Crown attorney Fraser Kelly asking the judge to sequester the jury one more night and allow them another fresh start Wednesday morning.
Justice George called jurors back in at 8:45 p.m. and heard their verdict on Jurkus and their lack of agreement on Lonsbary.
He discharged the jury and a mistrial was called.
Lonsbary is to appear in court next week to begin the process again.
His lawyer, Ron Ellis, declined to comment because the matter is still before the court.
Both defence lawyers have decided not to call any evidence on behalf of their clients
A London jury will hear closing arguments in the trial of two former jailors at the Elgin Middlesex Detention Centre on Tuesday.
Former EMDC supervisor Stephen Jurkus and former guard Leslie Lonsbary are charged with failing to provide the necessaries of life in the death of inmate Adam Kargus.
The 29-year-old inmate was beaten to death on Halloween night 2013 by his cellmate Anthony George.
The Crown alleges that both men did nothing to protect Kargus from harm and that both Jurkus and Lonsbary allegedly ignored evidence that George was likely under the influence of a mind altering substance on the night of the murder.
Both Jurkus and Lonsbary have pleaded not guilty.
On Monday, Ron Ellis, the lawyer for Leslie Lonsbary told a London jury that he would not call any evidence in the case.
Patrick Ducharme, the lawyer for Stephen Jurkus, also chose not to call any evidence on behalf of his client Friday.
“The evidence is now complete in this case,” Justice Jonathon George told the jury Monday, adding that the Crown and the defence will deliver their closing arguments on Tuesday.
The judge told the jury he is scheduled to read his charge on Thursday.
A former inmate at the Elgin-Middlesex Detention Centre told a London courtroom Monday he could hear “ear-piecing” screams on the detention level above him on the night Adam Kargus was fatally beaten by his cellmate.
Mel Albert testified at the trial of two workers at the notorious jail — Stephen Jurkus and Leslie Lonsbary — who are charged with failing to provide the necessaries of life in Kargus’s death.
“I could hear that boy screaming ‘Help, help, screaming for his life,'” said Albert, who was in a cell on a level below where Kargus was being held.
Albert, a career criminal with multiple convictions that stretch back to the mid 1980s, said he tried to alert guards about the screams, which he said were easily heard through the jail’s heating vents.
Albert was questioned by defence lawyers for the accused, who asked about his extensive criminal record.
“I really never respected the courts,” the man admitted. “But today, I’m here on my own.”
Kargus died after being beaten by Anthony George in the cell the men shared on Halloween night in 2013.
In 2017 George pleaded guilty to second-degree murder in Kargus’s death.
Earlier Monday, the cross-examination continued of former corrections officer Greg Langford who was working at EMDC up to 8 p.m. on that night.
Langford, 60, was asked about an incident captured on the prison’s security cameras that shows George grasping Kargus in a choke hold from behind while Langford looks on.
The incident happened in a common area outside the cell on the afternoon of Oct. 31. The video played in court Monday shows Kargus frantically tapping George’s arm, a sign of capitulation.
Langford testified that he ordered George to release Kargus. The choke continued for a few moments before George eventually released him. Langford would later tell police that the choke appeared to put Kargus in “distress” and because he was “turning red” before George released him.
Langford said he told George to release Kargus “four or five times.”
Langford told the court he didn’t file a report about the incident, because he thought it was a practical joke.
Jurkus’s lawyer Patrick Ducharme questioned Langford about this.
“That’s not horseplay, that’s an assault, isn’t it?” Ducharme asked.
“No, I don’t believe so,” Langford said.
“Mr. Kargus wasn’t showing any signs of consent to be choked, was he?” Ducharme asked
“No, he was not,” Langford responded.
Ducharme asked Langford if he asked Kargus if he thought it was a joke after George released him..
Langford said “No, I asked him if he was alright.”
“And how did Kargus answer that question?” Ducharme asked.
“He looked at me like I had two heads and said he was fine,” Langford told the court.
Langford denied a suggestion by Ducharme that he didn’t report the incident, and a handful of other clear breaches of jail rules by George that day, because he was afraid of George. The court heard that among both guards and prisoners, George was known at EMDC as a “heavy,” prison parlance for a dominant prisoner known for violent acts.
Ducharme also suggested Langford was in a hurry to leave as his shift ended at 8 p.m., a claim Langford denied.
Langford was originally charged in the case but the charge was withdrawn. He later testified at a preliminary hearing into Kargus’s death.
Langford was fired from his job at EMDC almost a year after Kargus died.
The trial is expected to continue Tuesday with the playing of an audio tape of an interview that London Police Service Det. Amanda Pfeffer did with Jurkus five days after Kargus died.
SARNIA, ONT.—A former athlete who trained under one of Canada’s top gymnastics coaches accused him of sexual assault because she was bitter about not achieving her Olympic dreams, the man’s lawyer argued at his trial Friday as a prosecutor urged a judge to take the woman’s allegations seriously.
Dave Brubaker, who was the director of the women’s national gymnastics team, has pleaded not guilty to one count of sexual assault and one count of sexual exploitation.
The complainant, whose name is protected by a publication ban, was one of Brubaker’s top athletes and took up much of his attention at his gym in Sarnia, Ont., court heard.
“We suggest that obvious and significant disappointment when her aspiration to become an Olympic gymnast slowly but perceptibly diminished, when her coach and surrogate father went on to take other gymnasts to great successes, had a significant effect on her psyche,” defence lawyer Patrick Ducharme told the court in his closing arguments.
Other young women who trained under Brubaker made it to the Olympics, but not the complainant, court heard.
The woman, who was a teen at the time of the alleged incidents, testified that she was disappointed and angry that she didn’t make it, despite training upwards of 25 hours a week for years and sustaining multiple injuries in pursuit of her dreams.
Crown lawyer David Rows argued that the woman’s willingness to disclose those details gave legitimacy to her testimony.
“She was forthright about her bitterness toward Mr. Brubaker,” Rows said. “That as a whole did not taint her evidence.”
The woman told the court that Brubaker would sometimes touch her backside while kissing and hugging her goodbye. She said he would also pick her up from school and take her to his house, where he would occasionally spoon her in bed and tickle her belly before driving her to practice.
Ducharme argued that wasn’t possible because Brubaker’s wife was nearly always home at the same time, but the Crown said the coach’s spouse couldn’t have always been present so there still would have been opportunity for such naps.
“If you accept the (complainant’s) evidence,” Rows said, “the only logical inference is that the touching of the bum and the touching of the stomach in the bedroom context was of a sexual nature for which the complainant did not provide consent.”
He also said the woman’s evidence that Brubaker groped her while hugging her goodbye should be believed.
Ducharme noted, however, that the woman couldn’t remember which hand Brubaker used to reach behind her.
Brubaker’s defence lawyer also called into question the legitimacy of the police investigation into his client, noting that the only officer to probe the case was a close friend and relative of the complainant. That officer cannot be named to protect the identity of the alleged victim.
“(The officer’s) investigation was not appropriate,” Ducharme said. “His investigation lacked all professional distance.”
Ducharme suggested that the officer fed the complainant allegations to bring against Brubaker.
“He cajoled a favourable statement from her,” the defence lawyer said, noting that there were differences between what the complainant told the officer and what she told the court.
Justice Deborah Austin is expected to deliver her decision on Feb. 13.
All witnesses for the prosecution and the defence are potential sources of information and may prove valuable to defence counsel. It has long been settled that there is no property in a witness and that a witness may be interviewed by both sides.
Of course, a lawyer wants to avoid the possibility of unwittingly becoming a witness and should therefore ideally have all witnesses interviewed by someone else, preferably an independent private investigator who may be called in the event that the witness later gives evidence inconsistent with any statement earlier provided. The importance of preserving in some independent fashion the previous oral and written statements of witnesses is highlighted by the various uses that may be made of previous statements under sections 9, 10, and 11 of the Canada Evidence Act.
Uncovering all the facts requires more than meetings with your own client and the client’s witnesses. Complete disclosure is paramount, although the issue of what can or should be disclosed in any given case is by no means uncontroversial.
The right of the accused to full disclosure by the Crown is an adjunct of the right to make full answer and defence. One important source of information, of course, is that information in the possession of the Crown. The term “in the possession of the Crown” is now understood to include all information in the possession or knowledge of the police. In 1991, Justice Sopinka, writing for a unanimous court in R v. Stinchcombe1, reviewed the general principles governing the duty of the Crown to make disclosure to the defence, especially in the context of indictable offences. He concluded that the Crown’s general obligation is to disclose all relevant information, even if the Crown does not propose to adduce it at trial. His Lordship also noted, however, that the Crown’s obligation is not absolute. It is subject to the Crown’s discretion, a discretion extending both to the withholding of information and to the timing of disclosure.