Crown to appeal case where trial judge may have been “compromised”

The Crown is seeking to appeal a case where an Ottawa judge acquitted a man of sexual assault and later told a detective that a website he accessed the night before the verdict would have given the defence enough evidence to “hang” the victim.

In an affidavit filed with the court, Vikki Bair, Crown attorney for the City of Ottawa, said she was “very concerned, even shocked” by what Det. Erin Lehman statement revealed “as I believed the trial judge was compromised.”

Superior Court Justice Timothy D. Ray asked a bailiff to “discreetly” ask Lehman to speak to him in chambers after the trial ended Dec. 18, 2013, according to Lehman’s statement filed with the Ontario Court of Appeal.

After the verdict, Lehman went to Ray’s chambers, where he asked her if she had ever gone to the dating website “Match.com” as part of the investigation. She said no.

He told her that he had gone online the previous night and “created a fake profile of himself” wrote Lehman in her statement.

If the defence had done the same thing, “(the defence lawyer) would have been able to ‘hang’ the victim with all the available information” Lehman said Ray told her.

At the end of the conversation, Ray told Lehman she had been a “bright, happy face” in a somber crowd, and they should have lunch or coffee some time.

Lehman left and immediately reported the conversation to the prosecutor, Walter Devenz, she wrote.

By the end of January, the Crown realized there was no legal way to pursue a mistrial and applied to the Ontario Court of Appeal for an extension to appeal the acquittals on the grounds of “reasonable apprehension of bias,” said Bair.

On Monday, the Ontario Court of Appeal granted the Crown the extension for the case “where very serious issues have been raised; issues that go to the heart of trial fairness.”

Ray acquitted the man of sexually assaulting his 43-year-old wife but convicted him of assault, according to his judgment.

 

The woman, whose identity is protected by a publication ban, testified that her husband raped her and he had a knife in his pocket as he threatened her and her daughter from a previous marriage.

 

Ray found that the woman’s evidence was misleading and full of contradictions.

Defence lawyer Celine Dostaler opposed the Crown’s request for an extension, arguing that the judge’s independent online research did not affect his reasons for decision and that he had already considered enough information to undermine the victim’s credibility.

Ray’s intention was to meet with Lehman for “mentoring purposes,” she submitted in court documents.

 

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