Prosecutors are appealing a not guilty verdict in a case of domestic sexual assault after the investigating officer reported that the Ottawa trial judge created an online dating profile to research the alleged victim.
In an affidavit filed in court, Const. Erin Lehman detailed how Ontario Superior Court Justice Timothy Ray allegedly invited her to his private chambers after his ruling on Dec. 18, 2013, to discuss her investigation.
Ray allegedly said he created a profile on match.com, posing as a 25-year-old gay man. He suggested that the defence "would have been able to hang the victim with all the available information," according to the affidavit.
The alleged victim testified behind a screen during the trial, which shielded her from seeing others in the courtroom but allowed others, including the accused, to see her.
Ray allegedly said that he believed the alleged victim used the screen as a "prop." Lehman wrote in her affidavit that she disagreed with Ray and that she believed the alleged victim was "truly fearful of the accused."
Lehman also said she was "shocked" that Ray allegedly did not know that the accused could see her despite the screen.
"At some point Justice Ray stated that he was not sure if he was supposed to be talking to me like this but that his decision had already been made and was heard," Lehman wrote.
Ray found the accused not guilty of sexual assault, forcible confinement and possession of a weapon for a dangerous purpose, but found him guilty of assault. The accused cannot be named in order to protect the identity of the alleged victim.
Lehman reported her conversation to the Crown after leaving the judge's chambers.
Crown trying to overturn Ray's ruling
The Crown had initially planned to file a mistrial application after learning about the conversation and missed the deadline to file for an appeal. The Court of Appeal granted the Crown an extension to file its appeal in a decision released Monday.
"This is a case that should proceed before this court. It would not be in the interests of justice to prevent this case from proceeding by reason of a simple mistake regarding the appropriate remedy," the ruling stated.
The Crown had argued that the trial judge's private conversation with the investigating officer presented "reasonable apprehension of bias."
"This is a case where very serious issues have been raised; issues that go to the heart of trial fairness," the ruling detailed.
The Court of Appeal ruled that the credibility of the complainant had been an issue at trial.
"The reported conversation between the trial judge and the investigating officer touches upon the complaint’s credibility in a significant way," the ruling detailed.
None of the claims made by Lehman in the affidavit have been proven.
The case is scheduled to return to court on March 19.