Appeal hearing held for London police officer convicted of sexual assaults

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A London police officer has appealed his sexual assault convictions, asking that a court scrutinize a judge’s analysis of witness credibility and the inclusion of what it says was “bad character” evidence at his trial.

Lawyers for Eldin Omerovic, 27, made their arguments at a summary conviction appeal hearing on Thursday before Superior Court Justice Spencer Nicholson. Omerovic, a rookie officer, was convicted in October 2023 after a trial of two counts of sexual assault in connection to two sexual encounters with a woman whose identity is protected by court order.

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The woman testified Omerovic struck her in the face when they were having sex on Sept. 8, 2021, and struck her in the face and choked her on Feb. 2, 2022, while they were cuddling and kissing. A third charge of sexual assault with choking was withdrawn by the Crown.

The main issue at the trial was consent. At the trial, Ontario Court Justice Lloyd Dean found the woman to be credible and reliable and rejected Omerovic’s testimony that he never struck or choked the woman.

Omerovic was dealt a nine-month conditional sentence, plus probation. He was suspended with pay after he was charged in March 2022, but his salary was withheld once he was convicted.

Appeal lawyers for Omerovic, Mark Halfyard and Samantha Bondoux, argued the judge made significant legal errors and had three grounds for Nicholson to consider.

Halfyard said the judge erred when concluding that because the victim didn’t appear to “embellish” her account of the conduct “that she would be more likely to be telling the truth.” Also the judge gave too much weight to the complainant’s account simply because she went through with the criminal trial.

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“We say both of those analytical paths were erroneous and amounted to legal error,” he said.

Bondoux argued errors were made when applying a legal test to the entirety of the testimonies and, even though the defence didn’t object at trial, there should have been an admissibility hearing over evidence that similar slapping had happened during an earlier encounter and the victim made it clear she did not consent to being hit.

Allowing the similar fact evidence into the record amounted to “bad character” evidence that shouldn’t have been allowed.

But assistant Crown attorney Matt McLean said Dean’s finding of the woman’s credibility was fair and, citing case law, as long it isn’t the only reason cited in the assessment, “it is appropriate for a trial judge to note that the witness has not embellished their evidence.”

McLean said Dean found the woman acknowledged anything she couldn’t remember, tried to be accurate, that her evidence had a ring of truth and she wasn’t shaken in cross-examination.

When addressing the third ground of appeal, McLean said at the trial the Crown brought an application, unopposed by the defence, to have prior sexual conduct evidence admitted because it was “so highly relevant” to the issue of consent.

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The woman said in her testimony she made clear, after a previous encounter where she was hit, she told Omerovic she didn’t want it to happen again and the response from Omerovic was that “sometimes he got carried away.”

“Consent in a sexual assault case is the core issue. This is an instance where the complainant has been able to say, ‘This has happened in the past, I’ve told him I didn’t want this to happen and yet it happened again anyways,’” McLean said.

The defence at the trial didn’t raise the issue of prejudice because “they recognized that the evidence was so crucial to that particular point of consent that it ought to have been admitted,” McLean said.

Allowing an appeal on that ground “would send a message that’s its open to a defendant to make an argument in one way at trial about a specific piece of evidence and if that doesn’t go their way, to make a different argument or re-characterize the evidence in a different lens at the appellate stage,” he said.

Nicholson said he would inform the parties once he has reached a decision at a later date.

Omerovic still faces an internal police investigation about his conduct that could lead to professional misconduct charges.

jsims@postmedia.com

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