Windsor police lose bid to keep lawsuit private

Windsor police have lost their bid to keep the public from learning the details of a court case in which they are being sued for $2.3 million.

A Windsor man, who was acquitted in 2013 of sexually abusing a female cousin years earlier when she was a child, claims he was wrongly charged and prosecuted. The judge who heard the accused man’s criminal case was critical of police, saying officers and the prosecutor “ignored” evidence that supported his defence.

After being exonerated by the criminal courts, the man, his wife and children filed a civil suit against police and the cousin he says falsely accused him. The police then went to court to try to get a sweeping publication ban in the case and to get documents sealed, arguing they needed to protect the identity of the man’s accuser. The police also applied to have hearings in the case held behind closed doors, but later dropped that request.

Superior Court Justice Kirk Munroe Friday released a ruling against the police. He also ordered the Windsor police to pay the Windsor Star, the CBC and CTV News $6,500 to cover the cost of challenging the application.

“Democracy dies in the darkness,” Munroe began in his written decision, quoting the motto of The Washington Post. He then went on to quote Canadian court decisions that confirm the concept of open courts.

Munroe noted a court order already exists prohibiting the publication of the accuser’s name and any information that might identify her. Such orders are mandatory in criminal cases involving sexual assault and remain in place permanently regardless of the outcome of the trial.

“The publication ban entered in the criminal case remains in full force and effect here,” Munroe said, calling it “unnecessary” to impose another publication ban.

Ruling against the police request to seal documents filed in the civil case, Munroe said documents filed in court do not constitute “publication” under the law.

Lawyer David Robins, who represented local media in challenging the police application, said he was pleased with Munroe’s decision.

“The public has a right to know what’s going on in the court system,” Robins said. “That is all the more important when the entity being sued is the Windsor Police Service, which is a public entity and must be held publicly accountable.”

It’s unknown if the police intend to appeal Munroe’s decision. The lawyer who made application to the court did not return phone calls Monday.

The man suing police — identified in court documents by the initials H.A. — filed the suit against his accuser, three Windsor police officers, Chief Al Frederick and the Windsor Police Services Board.

The police “utterly failed to carry out a competent investigation,” he claims. “In particular, they failed to investigate exculpatory evidence, including evidence that proved that the alleged incidents could not have occurred at the time and place claimed by the complainant.”

His claims have not been proven in court.

The Windsor police have applied to have a judge, in effect, dismiss H.A.’s lawsuit without it ever getting to trial. A hearing on that application is scheduled for June 2018.

The alleged victim in the criminal case claimed H.A. sexually assaulted her in his Leamington apartment between 2004 and 2007. At trial, H.A. produced a deed to his home, proving he was living in Windsor, not Leamington at the time.

In acquitting the man, Superior Court Justice Renee Pomerance called it but one piece of “troubling” evidence that undermined the alleged victim’s credibility.

H.A. claims the alleged victim’s mother — his aunt — had wanted him to marry a female relative from Kosovo. The marriage would allow her relative to more easily immigrate to Canada. He claims things got ugly when he got engaged to someone else.

H.A. says the aunt tried to break up his marriage. He also claims his accuser’s family threatened his life. One day in April 2012, he was beaten and left unconscious. Police arrived and arrested H.A. for uttering threats and for the sexual abuse alleged to have occurred years earlier.

H.A. claims he told police about the family discord and the threats, but they refused to investigate. They also refused to investigate evidence that would cast doubt on the sexual assault allegations, he says.

The police, in their statement of defence filed with the court, deny any wrongdoing.

“The fact of an acquittal after a trial does not mean that there were not reasonable and probable grounds to lay the charges,” they say. The alleged victim “provided a compelling level of detail and appeared sincere in her descriptions of the abuse.” A preliminary hearing was held in the criminal case and a judge found there was sufficient evidence to proceed to trial, the police point out.

The alleged victim, in her singlepage statement of defence, denies her accusations were false.