Ontario Court Justice Micheline Rawlins has just found former Windsor Spitfire Ben Johnson not guilty of sexual assault in connection with an incident in the washroom stall of the Krooked Kilt on Jan. 23, 2013.
Former Windsor Spitfire Ben Johnson may be rude and homophobic, but he’s not a sex offender.
So ruled an Ontario court judge Thursday in finding the New Jersey Devils draft pick not guilty of forcing a woman to touch his exposed penis in the washroom of a Wyandotte Street West bar nearly three years ago.
Justice Micheline Rawlins said she accepts for fact that both Johnson and his accuser were at the Krooked Kilt on Jan. 13, 2013 and that there was an incident between them in the washroom that night.
But Rawlins said she doubted the incident occurred as Johnson’s accuser testified it did.
The woman testified she had been in the stall with her girlfriend. As her girlfriend got out, Johnson came in, trapping her inside. His pants were undone and he forced her hand onto his exposed penis, she said.
“The issue before the court is the touching of penis,” Rawlins said. “I cannot find for a fact that he placed her hand on his penis.”
Earlier that same evening, Johnson made sexual advances toward another woman in the same washroom.
That woman, testifying as what the courts refer to as a “similar fact” witness, said Johnson knocked on the door of the stall she was using and asked for oral sex. She testified that when she came out of the stall, Johnson was still there. He again asked for oral sex, then, rebuffed a second time, asked the woman to lift her top. The woman said she told Johnson she was gay and laughed off the incident.
Rawlins said she believed the woman’s testimony. She had “no axe to grind” and had “no motive to fabricate,” the judge concluded.
The similar fact witness, called to bolster the prosecution’s case, in fact hurt it, according to Rawlins’ assessment.
Rawlins said the incident gave her insight into Johnson’s demeanour that night. Rawlins believed that Johnson, under the influence of alcohol, may have been acting inappropriately, but was not acting aggressively.
The judge reviewed Johnson’s testimony, saying “there are parts I reject and parts I accept.”
Johnson, 21 now but underage at the time, testified he sipped on one beer throughout the evening. Rawlins said the mere fact Johnson went used the washroom at least three times suggested he “minimized” his level of intoxication that night.
Johnson said he went into the stall with a woman inside and said, “Move, or I’ll pee on you.”
Johnson called the woman a dyke, “which the court finds rude and homophobic, but not criminal.”
The next day, Johnson texted the woman’s brother, who had also been in the bar that night. Johnson admitted to urinating in front of the woman, but nothing else. He seemed genuinely confused when the brother made a reference in his texts to sexual assault.
The woman testified she did not report the incident to police right away. She did so only after hearing the allegation that Johnson had sexually assaulted another young woman in the washroom of another bar.
Johnson is scheduled to stand trial in Superior Court in May on that charge.
There is a court order prohibiting publishing information that would identify Johnson’s accuser.
Outside the courthouse, defence lawyer Evan Weber said Johnson’s career has been put on hold by the accusations. Johnson was drafted by the Devils in 2013, but has only played in the minor leagues.
He is currently “on hiatus,” skating, but not playing for any team, Weber said.
“This has been a very trying experience for him,” Weber said. Johnson worried about the outcome of the case, but “he felt confident that justice would ultimately play out.”
Assistant Crown attorney Scott Kerwin declined to comment on the judgment.
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