Caution: This story contains details of a sexual nature.
GUELPH – A jury of four women and eight men for the trial of Michael Hurst heard testimony from two women, and Hurst himself, in the lower level of Guelph Superior Court last week before Justice Cynthia Petersen.
The 46-year-old Palmerston resident stands charged with five counts of sexual assault involving two women between 2017 and 2020.
Hurst has pleaded not guilty to each charge, and none of the allegations have been proven in court.
The women, who cannot be named by the Advertiser because of a court-ordered publication ban, testified and gave evidence in the trial on Sept. 11 and 12.
The women had gotten to know Hurst professionally, and attended work-related industry and social events.
The publication ban, which is standard in sexual assault trials, is used to protect the identity of victims and witnesses, but also prevents the Advertiser from reporting on many specific details heard in court last week.
Allegations centre around instances of sexual touching, oral sex and sexual intercourse between 2017 and 2020.
On Sept. 11, a woman under examination by Crown attorney Peter Keen testified that Hurst had, without consent or warning, grabbed her rear-end in 2017.
Hurst testified the circumstances described were different; that he cupped the woman’s thigh after believing the woman was flirting with him.
Under cross-examination, Toronto-based defence lawyer Mary Murphy suggested Hurst had actually touched the woman’s leg in the first instance, “not the buttocks.”
“He touched me on my butt,” the woman responded.
The jury heard of another instance in 2019, when the woman said Hurst “reached and grabbed my butt with both hands, and he squeezed.”
Murphy suggested that hadn’t actually happened, but that Hurst and the woman brushed by each other instead.
“No, he grabbed my butt, both hands,” the woman testified.
The woman said Hurst also “reached under my shirt, and he grabbed my breasts.”
“He asked me if I liked it,” she said.
“I replied sarcastically: ‘What do you think?’” she continued. “I tried to fluff it off with the sarcastic comment.”
When Hurst took the witness stand on Sept. 13, he testified that he believed the woman was flirting with him, and receptive to his advances.
Under cross-examination by the prosecutor, Hurst said the woman had turned her back toward him as she moved around him in a tight space.
“I look at her and she smiles back,” Hurst testified, saying he took the woman’s smile as flirting.
Hurst acknowledged reaching around the woman and grabbing her breast, saying, “that good?”
“It never occurred to you maybe she was just trying to get by?” Keen questioned.
“I’m not sure why she would smile back at me,” Hurst responded.
“Being friendly,” Keen suggested.
“I mean, you smile at me several times a day,” Keen said, laughing. “I wouldn’t call that flirting. Do you call that flirting?”
The prosecutor suggested the woman questioned Hurt’s actions when he touched her breast, “through her demeanour, tone of voice, response — she was clearly indicating to you this was unwelcome, not wanted.”
On Sept. 12, another woman testified about several instances of sexual touching, oral sex and sexual intercourse alleged to have occurred between 2019 and 2020. Three of the five total charges relate to those allegations.
“All I remember is him sliding his hand down my shirt, in between my breasts and my bra,” the woman testified about one of two similar instances of sexual touching.
Testifying about another, Hurst told court he and the woman were talking about a tight-fitting shirt and how the buttons “were holding on for their life … her terms.”
“As we were talking … her shirt was unbuttoned and … I grabbed her breast,” Hurst testified.
As Hurst’s defence lawyer cross-examined the woman, Murphy suggested the woman and Hurst were friendly, joked around, and got along with each other. The woman agreed.
Murphy went on to suggest the woman “reciprocated” Hurst’s sexual contact by grabbing his genitals.
The woman testified she didn’t remember, and said she didn’t consent to the touching.
Murphy would focus on that detail in her closing arguments days later, calling it a telling “internal inconsistency” not fitting with the woman’s testimony.
Court also heard descriptions of situations in which the woman testified to feeling pressured to perform oral sex on Hurst, and other situations in which Hurst is alleged to have rubbed himself against the woman.
One summer night in 2020, a group of people including the woman and Hurst were at a restaurant drinking before the group visited a strip club.
Both Hurst and the woman testified to have consumed an excessive amount of alcohol throughout the night; Hurst testified to between 15 and 20 drinks, and the woman described herself as being “very tipsy.”
The next morning, the jury heard, Hurst was lying naked in the woman’s bed. She was naked too, and neither could remember what exactly had happened the night before.
“Do you recall that the two of you both sort of looked at each other and said, ‘what happened,’ and started talking about what a crazy party night that was?” Murphy asked when cross-examining the woman.
“Yes,” the woman said.
The woman testified Hurst wanted oral sex, and she complied, saying with much emotion, “I didn’t want to.”
“He kept persisting,” she said. “He never really listened to the word ‘no.’”
Hurst testified that he and the woman “began kissing and touching each other” that morning, and proceeded to give a vivid account of oral sex and sexual intercourse.
“There’s no consent,” the woman told the court, testifying they did not have sex.
By the end of the day on Sept. 12, both the prosecution and defence had concluded their examinations.
Jury members, who are being paid $120 per day by court order, had Thursday off as each side took time to prepare closing arguments, heard on the afternoon of Sept. 15.
Wearing a light grey suit jacket over dark pants that Friday, Hurst crumpled a tissue in his hands and stared straight ahead with a flushed face as his defence lawyer presented arguments to the jury for around 20 minutes.
Murphy argued the women had “communicated consent” and said Hurst’s testimony “puts context” into the many encounters, most of which he doesn’t dispute.
Murphy also honed in on what she said are inconsistencies in the women’s testimony, which she suggested undermined and defied their credibility.
“It is my client’s version of events that should be [believed],” she said.
Keen’s black robe swayed as he paced across the carpeted floor of the courtroom, the repetitive clicking of a highlighter lid being removed and replaced the only sound as the prosecutor appeared to contemplate his delivery.
Keen charged into a call to convict Hurst on all charges. Over nearly an hour the prosecutor laid out his arguments, at one point moving an office chair away to provide space for his spirited delivery.
Keen argued Hurst had not obtained consent in the instances, knew he was committing sexual assaults, and that Hurst’s own testimony to some of the instances of sexual touching was enough to convict him.
Justice Petersen delivered instructions on matters of law and interpreting evidence to the jury on the morning of Sept. 18.
Most of the sexual activity described in court last week was undisputed by either side, but the circumstances of each account differ significantly.
Jurors heard about what consent means within a legal context, and the defence of an honest, but mistaken belief that consent was communicated.
Petersen said her job was to help the jury reach verdicts on the charges, but told jurors: “You are the judge of the facts in this case … You, not I, decide.”
Ultimately, Hurst remains innocent unless proven otherwise — the burden of which rests on the Crown, in proving an offence beyond a reasonable doubt.
To convict or acquit Hurst on each charge, the jury will have to reach a unanimous decision.
With Petersen’s instructions given, the final step in Hurst’s trial has begun as the jury deliberates over the evidence heard in court.