Globe and Mail

Sex-assault case thrown out after evidence suppressed

Judge assails prosecutors and police

Tuesday, February 9, 1999
KIRK MAKIN
Justice Reporter

A judge has thrown out sexual-assault charges against an Ontario man, describing suppression of evidence by police and Crown officials as "an affront to fair play and decency."

Mr. Justice Barry MacDougall of the Ontario Court's General Division said defendant Stephen Leadbeater was unfairly kept from knowing that the girl who complained about him had earlier helped convict another man of virtually identical offences.

In a bizarre quirk, the two men convicted by her testimony met in the exercise yard of Ontario's Warkworth penitentiary in 1994 and compared notes about their alleged molestation of the girl when she was between the ages of 8 and 16.

"You talk about the odd perversities of life," Mr. Leadbeater said in an interview. "I was just walking around getting some fresh air when this guy said: 'I've been waiting for you to get here. We've got to talk.'
"She said we both did the same kinds of thing on the same type of dates, using the same type of threats. The stories were almost identical."

Mr. Leadbeater, 36, spent seven months behind bars. He was released on bail pending an appeal that he eventually won. But before the start of his retrial, Judge MacDougall threw the case out.

A transcript of his ruling -- made orally two weeks ago -- was released yesterday. In it, Judge MacDougall named prosecutor Nancy Rae and Port Hope Police Sergeant Darren Strongman as the leading figures in a case he said resulted in irreparable harm to the justice system.

The complainant first made her allegations against Mr. Leadbeater, the son of a clergyman, in 1993. Unknown to Mr. Leadbeater, another man, Peter Sowden, was at the time being tried on similar charges.

(Mr. Sowden ultimately pleaded guilty and has since been released from prison.)

Instead of immediately investigating the second set of allegations, Sgt. Strongman told the complainant to bide her time until the Sowden case was out of the way.

In his judgment, Judge MacDougall described this as "a most unusual, extraordinary decision." He said that a police officer with a month of police college under his belt would know better, and that the move appeared aimed at protecting the complainant's credibility.

The judge noted that over the past year defence lawyer Moishe Reiter made repeated requests for disclosure of information. Each request was either turned aside or answered with partial disclosure.

Examples of unfair play highlighted by the judge included:

A Crown assurance that Mr. Reiter had been given all of Sgt. Strongman's notes "turned out to be totally incorrect. When the notes were finally handed over, they were indecipherable. There were errors in the notes, changes to the times noted. The notes were not properly identified as to whose notes were whose."

At Mr. Leadbeater's 1995 bail hearing, Sgt. Strongman tried to explain the similarity of the accusations against the two men by saying they were "close friends at the time of the abuse." Judge MacDougall noted that Sgt. Strongman now admits this was wholly speculative and he had no basis for misleading the appeal court in this manner.

In one of his requests for disclosure, Mr. Reiter misspelled the first name of a therapist who treated the complainant. The Crown replied it was unaware of his existence. In his ruling, Judge MacDougall said the Crown seized upon the misspelling to give an "extremely technical and misleading" denial of the material.

The Crown informed Judge McDougall last spring that an entire file in the Sowden case had been routinely destroyed. Later that day, he elaborated that the files had not been destroyed, but that police had not located them.

According to Mr. Reiter, his son David, a law student, told the Crown over lunch that day that a recent Supreme Court of Canada precedent would mean the end of the prosecution if the file had been destroyed.

Shortly afterward, it was found.

Judge MacDougall said that in general there was "little, if any, co-operation" from the Crown's office. "It appears that the conduct of both the Crown and Sgt. Strongman was to create potential roadblocks for the defence."

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