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Ontario Superior Court Justice John Hamilton

Sex-assault convictions set aside by appeal court
by Tracy Tyler
As originally posted: TheStar.com
May 5, 2009

David James thought the court had broken for lunch on the first day of his sexual assault trial but the case was continuing in the judge's chambers without him.

Four years later, Justice John Hamilton's decision to engage in a freewheeling discussion of the trial in the absence of the accused man has resulted in the Ontario Court of Appeal setting aside James' convictions."

The trial judge expressed opinions about the credibility of one of two critical Crown witnesses while she was testifying, before he had heard all the evidence the Crown intended to call and before he had heard submissions from counsel," Justice Marc Rosenberg said in a decision released today."

All of this took place in private when both the accused and the public were excluded," he said.

"The procedure was not only ill advised; it had the potential to undermine confidence in the administration of justice."Based on the Crown's account of the meeting, Hamilton also commented "on one of the fundamental choices an accused must make, the decision whether or not to testify," Rosenberg noted.

The judge breached James' right to be present at his trial as required by the Criminal Code.

James was charged with sexually assaulting two women in a Toronto apartment on January 3, 2004. On the first day of his Superior Court trial, Hamilton adjourned for lunch early and asked Crown and defence lawyers to join him in his office.

In an affidavit, James said he decided not to testify after hearing his lawyer's account of the meeting.

According to a statement of fact submitted by James' appeal lawyer, Michael Lacy, and Crown counsel John McInnes, Hamilton asked the Crown during the meeting to consider withdrawing the charges, saying he could not convict James on one charge because the complainant had refused to answer questions and had a motive to fabricate her story.

Although James' lawyer doesn't remember it, the trial Crown also recalled Hamilton saying James would likely be acquitted if he testified and was remotely credible.

If the Crown's account is accurate, James based his decision on misleading information and would be entitled to feel an injustice was done, said Rosenberg, with Justices David Watt and Gloria Epstein agreeing.The court ordered a new trial but suggested the Crown consider if it would be in the interests of justice to re-prosecute given that James has already served his sentence of five years with credit for pre-trial custody.