If Frank Stronach is acquitted of sex assault charges, it would likely mark end of MeToo era in Canada
Analysis
Two months after it began, the controversial sexual assault case against auto parts magnate Frank Stronach is now in the hands of his judge.
Justice Anne Molloy of the Superior Court of Ontario retired Thursday afternoon with two pressing questions to answer based on the extensive evidence and arguments she has heard. She reflected to the court offhand about how difficult these reasons will be for her to write.
Did Stronach, 93, sexually assault three women more than 40 years ago, when he was about 50 and they were in their 20s, in similar fashion, by leading then from dinner to a private apartment and then abruptly initiating an unwanted sexual encounter?
And did police improperly coach his accusers in advance of their testimony here at Toronto’s main courthouse, indeed just a few days before the trial began, to such a degree that it tainted their testimony and violated Stronach’s fair trial rights?
If Judge Molloy’s answer to the second question is yes, it could almost force her to answer the first with no. In that case, as with much in this sordid proceeding that has already seen most original charges abandoned midtrial, it would mark a major failure for the Ontario Crown. It would mean that a sexual assault prosecution that brought the full weight of criminal justice and public scrutiny against a prominent and powerful man has been scandalously mishandled to the point of complete failure, regardless of the underlying facts.
If disgraced former CBC host Jian Ghomeshi’s 2016 acquittal on similar charges marked the beginning of the MeToo movement in Canada, Stronach’s possible acquittal would mark something like the end. Indeed, many of Stronach’s accusers came forward because they had learned of Ghomeshi’s charges, and court has already heard defence claims that the modern political imperative to “believe all women” caused police to unfairly invert Stronach’s presumption of innocence and investigate with “tunnel vision” on his guilt.
At issue on this final day of legal arguments were preparatory meetings between police and all seven original complainants, some of them mere days before trial. Stronach’s defence counsel Leora Shemesh said all seven of these interviews revealed new evidence, and this cannot possibly be coincidence, but rather must reflect that the women were “guided,” whether on purpose or not.
But police made no meaningful attempt to record these new statements, and as a result they have not been preserved or shared with the defence, as required by law. In some cases, one complainant revealed she had read details in the media of a different complainant’s story, details that would later turn up in the testimony of both. In other cases, new details emerged for the first time, such as one woman having regarded Stronach as a “fatherly figure.” Police asked the women about worrying inconsistencies and omissions that might trip them up under cross-examination. But rather than making a video and audio record of this crucial aspect of the investigation, all that remains for disclosure to the defence, Shemesh argued, are a few vague notes made by police that reflect simply what they took notice of, but not the context of any questioning.
The result, Shemesh said, is Frank Stronach has lost the opportunity to challenge those new memories.
“Valuable, critical pieces of disclosure are gone forever,” Shemesh said, not because they were accidentally lost or inadvertently destroyed, but because police decided not to capture them. The conduct was “unacceptably negligent,” she said, and it violated Stronach’s rights to make a full answer and defence to the charges against him.
One witness, for example, said in a preparatory meeting she had seen media coverage of another complainant’s story, but then denied it on the witness stand, and was only corrected when the Crown agreed to that fact despite their own witness’s testimony.
In another case, a complainant said in the preparatory meeting that she felt she should only be a witness, not a complainant, but because of the sketchy note taking, the defence is unable to challenge this in any detail, or to pursue this clear opportunity to impeach a prosecution witness with her own words.
“Surely Crown counsel must have said something about the difference between witness and complainant, or why do you feel that way?” Shemesh told Judge Molloy.
In another case, a witness appears to have been prepped to gloss over gaps in her memory by saying things such as “I would have …” rather than “I don’t remember.”
“It wouldn’t be a stretch to believe that this type of preparation occurred in every case,” Shemesh said.
The stakes on this “abuse of process” motion about coaching and tainting witnesses are slightly lower than they originally seemed.
When the trial began, this motion was to be an application for a judicial stay of all charges. That means that if it succeeded, all charges would be thrown out never to be prosecuted again, a drastic remedy reserved for the clearest cases of prosecutorial misconduct. A judicial stay is not a verdict of not guilty. It has been described in case law as a remedy that does not mean the accused is entitled to an acquittal, but rather that the Crown is disentitled to a conviction.
Judge Molloy agreed there was at least an air of reality to the claim of abuse of process, and that she would hear the arguments at the end of the trial proper.
Much has happened since then. A witness apologized for lying under oath, another had a full emotional meltdown on the witness stand. Both saw their charges abandoned. Some charges were abandoned by the Crown as having no reasonable prospect of conviction, others rejected by the judge herself who said she could not possibly convict on the evidence of another particularly troubling complainant. So now instead of 12 charges involving seven women, there are five charges and three women.
But on Thursday, defence counsel Shemesh said she was no longer seeking a judicial stay. Instead, she has “come to appreciate that the Crown was in the unenviable position of having to probe new memories (during trial) because the police did not.”
She no longer alleges gross negligence on the part of the Crown, rather that the manner in which police tried to capture evidence in the trial preparation meetings was careless and “unacceptably negligent.”
As a result, she is not asking Judge Molloy to stay the charges, but rather to make this finding of negligence and use it in her analysis of the credibility of each of the remaining three complainants.
It might be a distinction without much of a difference. Crown attorney David Tice, who has not prosecuted this case but appeared to argue this abuse of process motion, closed out the day. Before rising around 4 p.m., Judge Molloy said court will return on June 19 for a verdict or at least an update.
Regardless what happens in this trial, Stronach also faces a possible second prosecution in the future in York Region with similar charges, more recent allegations, and a similar defence strategy involving claims of collusion and witness tainting.
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