It is as if two-and-half years and more than 20 court appearances never happened.

His conviction overturned and a new trial ordered, Mustafa Ururyar is once again facing allegations that he sexually assaulted fellow York University PhD student Mandi Gray.

Ururyar appealed his July 2016 conviction and sentence, alleging that now-retired Ontario Court Justice Marvin Zuker, who oversaw his trial, was biased against him and gave a rambling, confusing and “illogical” analysis of the evidence in a 179-page decision that quoted extensively from academic studies and literature about sexual assault including Maya Angelou’s I Know Why the Caged Bird Sings.

In his appeal decision, released Thursday, Superior Court Justice Michael Dambrot called Zuker’s judgment and reasoning “incomprehensible,” and said Zuker had failed to provide an explanation for why he strongly denounced Ururyar’s evidence as feeble, unbelievable, incomprehensible and false. In an unusual and unexpected postscript to the appeal decision, Dambrot accused Zuker of reproducing or drawing on sources without attribution.

“This was a simple trial,” Dambrot wrote. “In order for the trial judge’s reasons to survive judicial scrutiny, they had only to explain to the appellant why he was convicted . . . . Unfortunately, despite the length of the judgment, it fails this test.”

Having a second trial “because of inadequacies and excesses in the reasons for judgment of the trial judge does no service to the complainant or the appellant. But it is necessary to preserve the administration of justice,” he said.

It remains unknown whether Ururyar will actually face a new trial or whether the charges will be dropped.

A court date has been set for Aug. 4.

Read more: Original trial that convicted Mustafa Ururyar of sexual assault was a baffling spectacle: DiManno

Overturned verdict in Mandi Gray sex assault trial affects all parties, lawyer says

Outside the court, Ururyar declined to comment. His lawyer, Mark Halfyard, said his client is happy with the result of the appeal.

“This has been a trying experience for him, both emotionally and financially, and he looks forward to continuing to protest his innocence at the retrial,” Halfyard said.

Gray has said many times that she does not want to testify at a second trial. But, she said Thursday, the decision to proceed with a new trial lies with the Crown and she could be subpoenaed to testify whether she wants to or not.

“It doesn’t really matter what I want,” she said.

The message sent to people who have been sexually assaulted after the two-and-a-half year saga is “don’t bother reporting,” she said. “You are going to spend the next two, three years of your life being wrapped up in a system that really doesn’t care about you.”

To applause from her supporters, Gray said she “never needed any man to tell her whether I’ve been raped or not . . . . I still know what happened to me, and it doesn’t matter what the legal system thinks.”

“I’m horrified by this entire system, not just by Zuker’s inadequate analysis of case law,” she said. “The whole system is horrifying and people should be horrified.”

In his decision on Thursday, Dambrot also criticized the trial judge for appearing to rely on stereotypes about how rapists behave, despite rejecting notorious rape myths about the way sexual assault victims behave.

“We must be vigilant to reject pernicious stereotypical thinking about the behaviour of women. At the same time, we must not adopt pernicious assumptions about men and their tendency to rape,” Dambrot said.

“All witnesses, and not just rape complainants, are entitled to have their credibility assessed on the basis of the evidence in the case, rather than on assumptions about human behaviour derived from a trial judge’s personal reading of social science literature,” Dambrot wrote.

“In a case such as this, a trier of fact cannot reason backwards from literature about rape and how rapists behave to the identification of the accused as a rapist.

“But that appears to be what the trial judge did.”

A judge has overturned the conviction and ordered a new trial for Mustafa Ururyar, who had been found guilty of sexually assaulting a fellow university student. Complainant Mandi Gray says she doesn?t have the resources for a new trial. (The Canadian Pr0

Dambrot did not make a finding about whether Zuker showed a reasonable apprehension of bias in favour of Gray, or whether it was proper for Zuker to have relied on studies and literature not put to the parties in court.

He said that most of what the trial judge took from the literature supports principles in Canadian law, but he was troubled by how those principles were used given the “virtually incomprehensible mixture” of references to literature about rape and the trial judge’s own opinions.

Loading... Loading... Loading... Loading... Loading... Loading...

Although no lawyers had brought up concerns about a failure by Zuker to attribute his sources, Dambrot ended his decision by noting several instances he discovered.

“Most disturbingly” he says, there are three paragraphs from Zuker’s decision commenting on Gray’s memory of the alleged sexual assault that contain language strikingly similar to the courtroom statement of the victim in a high-profile Stanford rape case.

In that statement, the victim said: “The only symbol that proved that it hadn’t just been a bad dream, was the sweatshirt from the hospital in my drawer.”

In Zuker’s decision he wrote, with no attribution: “This was not a bad dream. And, on top of that Mandi is blamed, blamed because there were no symbols that it had not just been a bad dream unless there was a reminder from the hospital in her drawer.”

In an email, Zuker declined to comment on the decision and the postscript.

“It would not be appropriate for me to comment on Justice’s Dambrot decision since the case is still before the courts, either by means of a new trial or a further appeal,” he said.

Defence lawyer Daniel Brown, who was not involved in the case, says it is rare for a judge to express concern about attribution, particularly when it wasn’t raised on appeal.

“It was appropriate in the circumstances because when a judge delivers a reason for his judgment we want to be confident that we understand the reasoning behind the verdict they arrived at,” he said.

The appeal hearing also delved into Zuker’s unprecedented order for Ururyar to pay $8,000 of Gray’s legal fees as restitution.

As the conviction was overturned, the order is no longer effective. For that reason, and because his decision on the matter could not be appealed in the circumstances, Dambrot chose not to make a ruling on whether such an order is legal.

Pam Hrick, counsel for the Barbra Schlifer Clinic, said that, because Dambrot did not deal with the issue, Zuker’s concept of having a convicted rapist pay for the legal fees of the victim still stands and could be raised in future cases.

She stressed the importance of complainants being able to obtain independent legal advice, and the need for the federal and provincial government to fund it.

“Not all survivors have the ability to hire lawyers in the first place, and then hope, at the end of the case they get a conviction and they can recoup the costs they have incurred,” she said.

Read more:

Judge’s ‘unusual approach’ in Mandi Gray sex assault trial questioned

Judges need mandatory sexual assault training, MPP says

Mandi Gray settles human rights complaint with York University over sex assault policies