Abuse of process is a grave offence

She said, to a detective from the Waterloo Regional Police’s Special Victims Unit: “(I)n a way the memory is a bit foggy, just simply because it isn’t the picture flowing, like a movie or something … In my mind, it’s almost like, fragmented … At the time, it was something I — I very much repressed.”

The Waterloo Region Assistant Crown Attorney said: “The question for me is — is there a reasonable prospect of conviction … can I win this case? And the concerns related to the reliability … make me of the opinion that this is not a case that we can win.”

She said, to the Crown, during a phone conversation she didn’t disclose was being audiotaped: “There is no repression of memories here. This is something that has stayed very much, umm … this didn’t just come to me all of a sudden at, you know, however old.”

She said, to the ACA, after the Crown had extended a resolution agreement to the accused – charged with a historical sexual assault – which included a three-year peace bond: “I think that maybe there could have been a bit of confusion in the idea of not trying to think about something versus not having thought of something at all.”

Memories parsed to the bone. A prosecution slammed for abuse of process, which is where this sorry episode would end.

She said, to the ACA, about her statement to the detective: “I think it’s very clear there though, that this isn’t a forgotten memory or anything, this is something kept in … in the back of my mind, something I didn’t want to talk about, something I was uncomfortable with.”

And which sprang from the back of her mind to the front of her mind after a “disgusting” comment the alleged molester made to her some 15 years later, at a wedding they’d both attended.

The charges related to one incident of inappropriate sexual touching that occurred, allegedly, sometime between Jan. 1, 2000, and Dec. 31, 2001.

The complainant said to the ACA whom she’s clearly trying to strong-arm into rescinding a plea agreement made in good faith, to which she, the alleged victim, was opposed: “For you, is there a possibility of new evidence or anything that you were to discuss one on one with a complainant?” With her.

The ACA: “I told you, this is gonna be a hard case … If you didn’t want a peace bond, then that’s fine and that’s where we’re going kind of thing.” To trial. That was her initial inclination.

The ACA said, after reviewing the police interview transcript: “My assessment changed once I got the transcripts.”

She, the complainant, said: “The transcripts is what made you then think about the reliability and how that would be an issue in court, correct?”

So what if, the complainant suggested, the Crown went back with “new information”; that being, basically recasting the word “repression” to mean what it doesn’t mean.

The ACA: “Where the memory is not repressed, but it’s present … I — no. I don’t think it’s an especially strong case.”

The complainant wants the accused stopped from doing this — the misconduct alleged — to anyone else.

She wants a trial and the outcome is less important, she says, than speaking her truth in front of his family, so that they know.

“The trial could give the opportunity to possibly stop someone else from dealing with the struggle that I’ve had to, since I was quite young.”

The ACA: “I’ve made an agreement with (defence) counsel based on my understanding of your statement … You’ve told me (now) that your statement means something else … You’ve told me that the way that I understood your statement is not the way that the statement was intended to be understood.”

The ACA continued: “So, I need to look at where that leaves me. I don’t want, for instance, to retract an offer which leads to this being appealed and then overturned.”

The complainant said: “Is there a possibility to go back and say a deal was made umm, maybe when it shouldn’t have been or without, umm, looking at different evidence or all of a sudden new evidence came up.”

The ACA: “Is there any new evidence? Is there anything new that the police did not know about in this case that has come out since then?”

The complainant: “It isn’t new evidence but almost maybe in a way — and excuse me saying this ‘cause I don’t mean it in the way that it’s going to sound — but almost like mishandled evidence or misunderstood evidence or something, you know?”

The ACA asks repeatedly about any objectively new piece of evidence, to justify rescinding the agreement that’s already been accepted, and after the defendant has already participated in counselling sessions, as stipulated.

There is nothing beyond the interpretation of “repressed.”

Shades of President Bill Clinton, at his impeachment hearing: “It depends on what the meaning of the word ‘is’ is.”

He, the defendant, has adamantly stated he won’t plead guilty.

It never happened. He’ll go to trial if the plea agreement is revoked.

Earlier this year, before trial, the defendant’s lawyer, Benjamin Jefferies — his client charged with sexual assault and sexual interference — brought an application for a stay of proceedings, alleging prosecutorial abuse of process because of the repudiated plea agreement in the absence of any new evidence.

A stay of proceedings, if granted, means the charges — poof — go away.

The ACA had warned the complainant that a trial verdict might be overturned on appeal because of this very thing: retraction of the agreement. What the assistant Crown had not shared with the complainant, if in fact she’d even considered the possibility, was that she might become the subject of an abuse of process application, steeply damaging to her own reputation as a servant of the court.

Because she was not the complainant’s lawyer, a point that was stressed; she, in fact, was a Minister of the Crown, representing the public interest. It would fall to another assistant Crown in Waterloo to argue on behalf of the ACA who was central to the case.

In the 10-page decision released on Sept. 15, the original ACA’s name is never mentioned.

Jefferies argued that, in repudiating the resolution agreement, the Crown had “inappropriately suborned the public interest to the complainant’s personal agenda.

The decision to repudiate the plea agreement was made despite the Crown’s acknowledgment that the case is “almost unwinnable.”

The Crown, in an effort to buttress its decision to repudiate the plea agreement, referred and relied on ‘new information’ when, by the admission of the then-ACA, there was no new information.”

That repudiation was so “unfair, oppressive and tainted by improper motive” that allowing the prosecution to proceed would “tarnish” the integrity of the judicial system.

And that recorded conversation between the Crown and the ACA, which should have been turned over to the defence in disclosure after the ACA learned of it?

Just before the preliminary inquiry, only 11 of 92 pages were provided, claiming the rest was “not relevant,” though later provided in total.

Repudiation of a resolution agreement is rare. Abuse of process is a grave offence. A complainant, an alleged victim, cannot demand a trial or coerce a Crown into doing her bidding.

Superior Court Justice A.J. Goodman, in his decision, describes the transcript of the aforementioned call as offering “unique insight” into the Crown’s assessment of the merits of the prosecution. The Crown advised the complainant this was “a case that we can’t win.”

Even as the complainant persisted in describing the memory not as “repressed,” not “a forgotten memory.” Further, the complainant had asked the ACA whether she could direct the police to obtain a warrant and undertake further investigation into the accused, look for more evidence.

Crowns do not direct police investigations.

Goodman writes: “Upon my review, I am convinced that (the complainant) took over and controlled the interview with the ACA. She recorded the discussion unbeknownst to the ACA. She explained her preferred outcome for the matter. She first expressed her desire for a plea deal and dictated the terms that she wished to have imposed as part of the plea deal …”

It was not for him, Goodman, to determine whether the Crown should have entered into the original resolution agreement, the judge wrote, nor to weigh its reasonableness.

“I find that (the complainant), by her own admission, intimated a desire to use the public prosecution as a means of advancing her own agenda, namely to confront the accused with the allegations in front of his family, irrespective of whether there was any prospect of proving such allegations beyond a reasonable doubt.”

In the MeToo era, many will sympathize with the complainant.

But the law, the courts, are not in the vendetta business.

The Crown knew there was no new evidence. The complainant knew there was no new evidence. “The ACA was induced by the dogged and admittedly difficult and insistent complainant into repudiating the resolution agreement,” said the judge.

The Crown “acted improperly,” wrote Goodman, “with a view to advancing the complainant’s interests, over the public interest, in having the accused stand trial.”

The upshot is that Crown did indeed “suborn” the public interest “to the wishes and desire of the complainant.”

The prejudice and abuse could only be remedied by a stay of proceedings.

“Therefore, the application is granted. The charges are hereby stayed.”

Because I can’t identify the complainant, as an alleged victim of a sexual crime, I won’t identify the defendant either.

But that assistant Crown attorney? Her name is Dominique Kennedy.

As of last December, she is now Ontario Court of Justice Dominique Kennedy.

“I find that (the complainant), by her own admission, intimated a desire to use the public prosecution as a means of advancing her own agenda, namely to confront the accused with the allegations in front of his family.” A.J. GOODMAN

SUPERIOR COURT JUSTICE