When Ontario Court Justice Marvin Zuker sentenced Mustafa Ururyar for the sexual assault of fellow York University student Mandi Gray last year, he issued a never-before seen restitution order.

Ururyar was to pay $8,000 to cover Gray’s legal fees for hiring her own lawyer to advise and assist her before and during the trial.

Restitution orders in criminal cases can cover therapy bills and lost wages, but, according to the Criminal Lawyer’s Association, it was the first time such an order has been made for legal fees.

Zuker’s controversial judgment and sentencing decision are being appealed at a hearing next month on a number of grounds, but the issue of the restitution order in particular could have far-reaching consequences for both complainants and accused persons.

A key question will be just how necessary it is for complainants in sexual assault cases, or other cases, to have their own lawyer.

On Thursday, the CLA was permitted to intervene in the appeal to argue that it is never appropriate for the criminal courts to order restitution for a complainant’s legal fees.

In an affidavit filed with the court, the CLA director, Daniel Brown, argues that such an order is unfair given that accused persons who are acquitted cannot have the Crown reimburse their legal fees.

“The general policy that an accused person bears his or her own costs, regardless of the outcome of the litigation, should also apply to a victim who chooses to avail his or herself of counsel.”

Brown also argues there are already resources in place to help complainants navigate the criminal justice system through the Victim Witness Assistance Program and the Crown.

“I think certainly the Crown attorney had the capability of covering off any of the questions the complainant had . . . and if she had more questions and wanted to hire a lawyer that was certainly her right to do that. It is just not fair to have Mr. Ururyar in this particular case or any accused person pay those legal bills when it wasn’t necessary,” he said in an interview.

“Really, the only preparation a complainant needs is to be told to answer the truth when they come to court and to be open and honest about what happened.”

If the victim or a person who has been acquitted wants monetary compensation the person needs to go the civil court, he said.

Ururyar’s appeal lawyers agree.

According to documents filed with the court, they argue the section of the Criminal Code that deals with restitution does not address “a complainant’s legal fees, incurred at her own discretion.”

It’s an issue that should be addressed in the civil courts not the criminal courts, the factum states.

It also says the $8,000 amount was arrived at arbitrarily and without addressing Ururyar’s ability to pay — a requirement when ordering restitution.

Gray, who chose not to have a publication ban on her identity, said hiring a lawyer is the best decision she made and one she considers completely necessary.

“Victims cannot discuss their case in confidence with the Crown nor (with the Victim Witness Assistance Program). Anything you disclose may be disclosed to the perpetrator,” she said in an email.

“Without legal counsel, I would have been up against the university and the criminal justice system without a single ally. Rape costs a lot more than just emotional and career opportunities. . . . I hope future victims of the crime are empowered to retain legal counsel. This is a matter of access to justice and who should be paying for it.”

Her lawyer, David Butt, who will be seeking leave to intervene in the appeal later this month, said that the criminal justice system appropriately orders restitution for therapy when an accused person is found guilty. He views legal representation for complainants as another key service that helps them cope with a legal process that can be isolating, demeaning and traumatic.

“It is essential and only fair that those victimized by proven criminals be given restitution,” he said in an email.

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He said the CLA argument that accused persons who are acquitted are not compensated by the Crown for legal fees in the criminal courts differs drastically from ordering restitution for a victim.

“Costs awards against the Crown for acquittals would amount to a strong fiscal disincentive to pursue justice by holding reasonably alleged wrongdoers to account. This would disserve the public interest, acutely so in times when government resources are tight,” he said.

The appeal is scheduled to be heard March 14.