Toronto Star

Aug. 24, 2001, 02:04 EDT

Man cleared in 5 minutes after 1,047 days in prison

Wrongfully convicted in sex assault case over rejected alibi

Harold Levy
Toronto Star

After an ordeal of more than five years - including 1,047 days in penitentiary for sexual assault, unlawful confinement and threatening to kill - James Nelson was acquitted by the Ontario Court of Appeal yesterday at a hearing that lasted less than five minutes.

Nelson had already completed his jail sentence when he appealed the convictions on Sept. 15, 1999, to clear his name.

`I came here so that people would know that I told the truth from day one, and that I was an innocent man. I didn't want to be the convicted man that I was.'
- James Nelson
Stratford chef

``I came here so that people would know that I told the truth from day one, and that I was an innocent man,'' Nelson, a 34-year-old chef who lives in Stratford, Ont., said outside Osgoode Hall after the acquittal. ``I didn't want to be the convicted man that I was.''

His lawyer said the fact that an innocent man could be sent to penitentiary for more than three years on a charge as serious as sexual assault, based on nothing more than the word of his accuser, places the case alongside those of David Milgaard, Donald Marshall, Guy Paul Morin and other wrongly convicted Canadians. Morin was also acquitted by the Ontario Court of Appeal at Osgoode Hall.

A woman had accused Nelson of brutally sexually assaulting her in the early morning hours of Feb. 28, 1996.

Nelson testified that the woman had fabricated the incident to interfere with Nelson's ongoing custody battle over his son, and called alibi evidence to show that he was home with his wife when he was supposed to have been committing the crime.

But Ontario Court Judge Hugh Fraser chose to believe the woman, even though he found that her evidence ``was not perfect.''

The judge rejected Nelson's testimony and that of witnesses called to support his alibi.

Fraser said a harsh penitentiary sentence was called for to allay the woman's fear that the criminal justice system would not protect her. The woman's identity is protected by court order.

``The complainant has indicated in her victim impact statement her ongoing fear of this individual,'' the judge said.

Noting that Nelson had been convicted twice previously for assaulting the woman, and sentenced to 60 days and four months, respectively, Fraser ordered Nelson to serve at least half his sentence before being considered for parole.

The convictions began unravelling about three years later when crown counsel Scott Hutchison provided Todd Ducharme, Nelson's lawyer, with information that raised ``serious concerns'' about the woman's credibility.

That information became the basis of Nelson's application to bring fresh evidence before the appeal court to show that he was the victim of a miscarriage of justice.

On Aug. 17, Nelson filed materials in court including reports about the woman prepared by the Ottawa Carleton regional police force.

One report, relating to a group home the woman worked with, said she was emotionally volatile, sought to be the centre of attention and was involved in a variety of inappropriate behaviours, including consumption of narcotics and sexual interaction with male clients. A related document indicates that she was overheard saying, ``All men are pigs and should be treated as such.''

The ``fresh evidence'' material also indicated that on July 26, 2000, the woman received a six-month conditional sentence for falsely charging a man with sexual assault and other serious criminal offences.

In that case, the trial judge found that the man had ``an airtight alibi'' and that the woman was not ``a believable or a credible witness.''

The woman ``resorted to a number of tactics while testifying,'' Ontario Court Judge Jack Nadelle ruled. ``She at times cried at strategic moments. At other times she was quite combative. At other times, outrage, and at times (she) resorted to sarcasm when cross-examined by the crown.''

A document filed by Ducharme indicated that on March 23, 1999, charges of sexual assault and assault bodily harm, resulting from the woman's complaint against another individual, were ``stayed'' at the request of the crown.

Nelson acknowledged his two prior convictions for assaulting the woman, but took the position in the Court of Appeal that he had never assaulted her, except for restraining her on one occasion ``long ago'' by holding her wrists.

In submissions filed with the appeal court, Hutchison, who supported the acquittal, acknowledged that ``at trial (the woman's) evidence was, essentially, the entire crown case,'' and that in the intervening time ``evidence has come to light that (the woman) has deliberately fabricated complaints against other individuals.''

Ducharme said Nelson's case is in the same league as Milgaard, Morin and Marshall, and in ``some ways'' more serious, ``because it shows how much damage one lying witness can do.''

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