Sex assault charges stayed after complainant pressures Crown into nixing plea deal
Waterloo prosecutor favoured complainant’s interest over public interest in proceeding with ‘almost unwinnable’ case, judge finds
An Ontario Superior Court judge has stayed historic sexual assault and sexual interference charges against a man after concluding that the complainant persuaded the prosecutor on the case to go back on a plea agreement reached with the accused.
According to Justice Andrew Goodman’s ruling, the assistant Crown originally agreed to a plea deal that would see the charges withdrawn after the accused entered a peace bond and underwent counselling.
However, within two weeks of the scheduled resolution, the prosecutor obtained permission from her boss in the Waterloo Region Crown Attorney’s office to repudiate the agreement soon after a phone call with the complainant.
“It was the complaint who drove this process and the Crown acted like her personal lawyer and neglected her duties as a minister of justice,” Justice Goodman wrote in his Sept. 15 ruling, granting the accused’s application for a stay of the charges.
“The prosecution has engaged in conduct that is offensive to societal notions of fair play and decency, and proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. When I turn to the balancing exercise, the interests of society warrant the discontinuation of the prosecution of this case,” he added.
The decision says that the charges dated back two decades to a single incident involving the complainant and the accused. Her police complaint about the alleged inappropriate touching was lodged in November 2018 after she encountered the accused at a wedding and he made inappropriate comments about her breasts that she said had triggered her repressed memory of the alleged assault.
Once charges were laid, the Crown offered to resolve matters with a three-year peace bond that would bar the accused from contact with the complainant. As part of the deal, the accused also agreed to take counselling to address the inappropriate remarks he had allegedly made at the wedding.
According to Justice Goodman’s ruling, the accused had already completed his counselling by the time the assistant Crown called the complainant to explain the rationale for the plea agreement. The next day, the prosecutor emailed the accused’s lawyer to inform him that she intended to rescind the plea agreement after receiving new information from the complainant that changed her assessment of the case:
“In particular, C.T. disclosed to me that the word ‘repressed’ in her statement to police, referred to her act of actively pushing a memory to the back of her mind: having it present the entire time. This is very different than my understanding of the word repressed. I understood her statement to mean that the memory in question was absent for a great many years and then returned in a foggy state,” the assistant Crown wrote.
In argument on the stay application, the Crown claimed that the prosecutor acted appropriately in reassessing and that repudiation was required in this instance.
However, after reviewing an unredacted transcript of the call – recorded by the complainant – that the Crown was initially reluctant to provide the accused, the judge agreed that there was no new information in their conversation.
“In my view, the [assistant Crown attorney] is pulling from the weeds in order to bolster a position that is untenable. It is a matter of finding a solution and excuse in order to buttress the complainant’s desire to proceed and finding some rationale to rely upon,” Justice Goodman wrote. “The ACA was induced by the dogged and admittedly difficult and insistent complainant into repudiating the resolution agreement.”
During the call, the decision says that both the prosecutor and the complainant agreed that the case was “almost unwinnable.” Rejecting the offer of a chance to speak at the peace bond hearing, the complainant explained that she “wanted to go forward with the trial for the very, very simple reason of letting his family know – my side of it,” and to “send a message” that would be “so much more important than the verdict.”
Overall, Justice Goodman concluded that the decision to repudiate the plea agreement was tainted by the Crown’s conduct, and that allowing the prosecution to continue would tarnish the integrity of the judicial system.
“I find that the Crown acted improperly with a view to advancing the complainant’s interests, over the public interest, in having the accused stand trial. The [assistant Crown attorney], by her own admission, indicated that she would ‘try to satisfy some of what you [the complainant] want.’ She did, in fact, repudiate the resolution agreement in order that the complainant might get what she wanted, namely that the accused stand trial. In doing, the Crown suborned the public interest to the wishes and desire of the complainant,” he wrote.
In the circumstances, a stay of the charges was the only remedy capable of removing the prejudice caused by the abuse of process, the judge added.
“Specifically, to allow this matter to proceed to trial would permit the Crown’s office to be used as a means of accomplishing the complainant’s stated end, namely, to see the applicant publicly confronted by the allegations, where, the utility of the prosecution has been cast in doubt,” he added.
Julia Forward, who acted for the Crown on the stay application, but was not the prosecutor involved in the plea deal, declined an opportunity to comment on the ruling.
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