Could Jacob Hoggard win a new trial?

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What an ironic tragedy it would be if this is what wins a new trial for convicted rapist Jacob Hoggard.

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Clinical psychologist Dr. Lori Haskell was the Crown’s first witness at the sexual assault trial for the former Hedley frontman and her expert testimony about the “neurobiology of trauma” was designed to help the jury understand the judge’s instruction against using rape myths and how there is no one way a “real” victim would react.

Instead, it’s being used by Hoggard’s defence team to argue the evidence was prejudicial, unnecessary, misused by the jury and should never have been admitted in the first place by the trial judge, Superior Court Justice Gillian Roberts.

“The costs far outweigh the benefits,” argued Hoggard’s lawyer, Gerald Chan.

If the panel of three judges agrees, it could be used to not only overturn Hoggard’s conviction — but those of others found guilty following trials where she’s testified — including rapist Peter Nygard.

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After a gruelling five-week trial where the Ottawa victim was grilled for days, a jury took six days to find Hoggard guilty of sexually assault causing bodily harm in the violent 2016 attack she suffered after meeting Hoggard on Tinder and agreeing to hook up for sex at a Toronto hotel. Jurors acquitted him of a similar attack on a teenage Hedley fan.

Now a 39-year-old carpenter in Vancouver, Hoggard still faces a fall trial related to a third complainant in Kirkland Lake, Ont. 

In October 2022, Roberts sentenced Hoggard to five years in prison but said she would have imposed a longer term if he wasn’t also facing a $2.8-million lawsuit from his victim. He was almost immediately released on bail pending Wednesday’s hearing.

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Of Hoggard’s four grounds of appeal, the judges seemed especially swayed by Chan’s argument against the admission of Haskell’s evidence.

The psychologist was allowed to give  a “science lesson” to explain what happens to your body during a traumatic event — how the brain is flooded with stress hormones which impair rational thought, how people may freeze or encode memories differently.

In allowing her to testify, the judge took “judicial notice” that the science was irrefutable but warned it could only be used for a very limited purpose of dispelling rape myths. The jury wasn’t to use her evidence to play amateur psychologist and link what she said to the testimony of the complainants — whom she had never met or assessed.

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But Chan said it’s obvious the jury did just that — during their deliberations, they asked for a playback of Haskell’s testimony and asked four questions about her evidence. Even Roberts, he said, was worried.

“Frankly, the fact that they want to hear the evidence again concerns me because it shouldn’t be playing a major role in their decision,” the judge said in refusing to let them listen to it again.

Hoggard’s lawyer also complained that in their closing argument, prosecutors invited that kind of “diagnostic reasoning” and misused the psychologist’s “fight, flight or freeze” evidence by linking it to specific ways the complainants behaved after they said they were raped by Hoggard — including not leaving the hotel room immediately.

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“The moment it was admitted, this prejudice was inevitable,” Chan said.

Crown Catherine Weiler argued Haskell’s testimony was necessary to counter the jury’s natural presumptions that a sexual assault victim would flee.

The appeal judges gave her a hard time, insisting that could have been done by the judge’s instruction alone. “What was the value added of having this neurobiology (lesson)? asked Justice Mary Lou Benotto

“How was this evidence helpful in any way?” asked Justice Julie Thorburn.

“I’m having trouble understanding how this is going to help,” added Justice Paul Rouleau.

Even if the court found it was a legal error to include Haskell, “there was no miscarriage of justice,” Weiler insisted.

The panel reserved its decision — and in the meantime, continued Hoggard’s bail.

If they order a retrial, it’s unlikely to happen. His victim has already told CTV that she won’t testify. And who can blame her? “No one should ever have to endure the cruelty I faced in this courtroom,” she fiercely told Hoggard’s sentencing hearing almost two years ago.

“The justice system is not built for survivors.“

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