TORONTO - An Ottawa judge created a fake online dating profile the night before acquitting a man of sexual assault and told a detective information on the site could have been used against the female complainant, prosecutors allege.
Ontario Superior Court Judge Timothy Ray summoned Det. Erin Lehman to his chambers after the verdict on Dec. 18 and revealed his activities from the previous night on match.com, the officer says in an affidavit.
He then suggested they have lunch or grab a coffee one day, she alleges.
The Crown is appealing the acquittal, largely on the grounds that the judge's conversation with the detective "gives rise to a reasonable apprehension of bias," according to documents filed with the Court of Appeal for Ontario.
"In choosing to independently seek out information about the complainant that did not form part of the evidence, information which he viewed as negative to the complainant's credibility, the trial judge revealed a reasonable apprehension of bias," the Crown says.
When Lehman arrived in Ray's chambers that day, after having asked the bailiff to "discreetly" request Lehman's presence, he asked her if she had gone on match.com during her investigation, Lehman says in her affidavit.
She said she hadn't, and Ray told her he had gone on the night before and created a fake profile pretending to be a 25-year-old gay man.
"He then told me that if defence had done the same thing, she would have been able to 'hang' the victim with all of the information available," Lehman says in her affidavit.
"He went on to say that you have to enter a large amount of information including how many drinks on average you consume and how many you would like your potential mate to consume."
The two proceeded to chat about the trial and various witnesses, Lehman says, with Ray asking her if she was surprised by certain testimony and remarking that he didn't understand why the victim was with the accused.
"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 says in her affidavit.
He then extended the invite for lunch or coffee, and Lehman told him she practically lived at the courthouse, she says.
Crown attorney Vikki Bair wrote in an Appeal Court filing that she was "shocked" by what she read in Lehman's written statement when she handed it over on Jan. 10 and found the alleged incident to be "very disturbing."
"My impression was that we were dealing with an inappropriate attempt by the judge to importune a young attractive officer," Bair wrote.
The Crown is seeking a new trial in the case, and this week the Appeal Court granted a request by the Crown for a time extension to file appeal documents.
Documents show the Crown also intends to appeal on grounds that Ray erred in his assessment of the complainant's credibility, drawing adverse inferences from her testifying with a support person and behind a screen.
In his Dec. 18 decision Ray wrote that he found the complainant evasive and bordering on rude. She could remember what she had to drink before a hit and run several years prior but claimed not to remember the name of her first husband, Ray wrote.
"When she wanted to she was feisty and debated with the defence counsel," Ray wrote in his decision.
"She certainly did not give me the impression that she was in any way an abused woman or that she was insecure...It crossed my mind that perhaps she was using the screen and support worker as props to further attempt to engage sympathy."
The man was acquitted of sexual assault, possession of a weapon for the purpose of committing an offence and two counts of forcible confinement, but was convicted of assault.