'A cautionary tale' on courtroom honesty
By Christie Blatchford
* PHOTO * Kevin Van Paassen, National Post
ACQUITTAL COMES AFTER 3 YEARS IN JAIL ON THE TESTIMONY OF A QUESTIONABLE WITNESS: During his time in prison, Jamie Nelson tried to hang himself, and one of his sons was put up for adoption.
TORONTO - Even in an era when a Canadian can no longer count on a single hand the number of those wrongfully convicted in the nation's justice system, the story of Jamie Nelson is sobering and instructive.
Mr. Nelson, 34, yesterday sat still, barely breathing, at Osgoode Hall while a three-member panel of the Ontario Court of Appeal formally overturned his convictions and registered in their stead acquittals.
As he watched Mr. Justice John Laskin complete the paperwork, Mr. Nelson's senses were on such high alert, he said later, "I'm almost convinced I heard him writing."
It was all over in minutes. Mr. Nelson, who lives now in Stratford, Ont., wasn't even asked to get to his feet. There was more ceremony attached to his suicide attempt in June of 1996, when, denied bail, awaiting trial and unable to imagine ever emerging from the quicksand in which he was mired, he made his careful preparations -- waited for lights out; waited for his bunkmate to fall asleep; waited for the guard to make his last walk-past for an hour; fashioned a noose from his bedsheet and affixed one end to the big metal box around the smoke detector in the ceiling; stepped on to the little sink in that cell at the Ottawa-Carleton Detention Centre, and stepped off.
Mr. Nelson stands apart from Guy Paul Morin, Donald Marshall, David Milgaard et al. because he went to federal prison solely on the say-so of a woman who claimed he had raped her, and not, as with his more famous predecessors, as a result of unreliable testimony from jailhouse stoolies or a botched investigation or prosecutorial tunnel vision or because good men in a human justice system made bad mistakes.
Cathie Fordham said that he sexually assaulted her. Mr. Nelson said he didn't. It was a classic he said-she said case.
The tie went to the woman, as so often it does.Ms. Fordham has since been revealed as a girl who cries wolf.
Convicted last summer of one count of public mischief in connection with a false allegation of assault, under a peace bond now in connection with another count of mischief over another false allegation; found by one judge to be an inventive and theatrical witness, Ms. Fordham may have complained to or at least called the police on as many as 55 occasions, seven of which reportedly involved claims of sexual assault.
In a remarkable coincidence, she is slated to appear in court in Ottawa next Monday -- she seeks to change her plea of guilty in another case where she is alleged to have threatened an ex-boyfriend with death -- before Mr. Justice Hugh Fraser, the very judge who on Nov. 1, 1996, found Mr. Nelson guilty of sexual assault (and three related charges) on her evidence.
Ms. Fordham, who turns 31 next month, was yesterday still standing behind that discredited testimony; she appeared on television last evening, duly photographed in shadow so her face was hidden, saying as much.
It does not appear there were any errors -- police, prosecutorial or judicial -- in the way the investigation of Ms. Fordham's original allegation of rape was carried out or at Mr. Nelson's trial. Ms. Fordham appears to have come to the attention of authorities only in 1998, in the wake of a raft of complaints from parolees about the-then "general administrator" of a halfway house called the Vanier Community Support Group.
That administrator was Ms. Fordham.
Contained in a May, 1999, report to Ottawa Crown officials from Ottawa Police Sergeant Keith Patrick were allegations that Ms. Fordham made "sexual advances" toward the male residents of the house, was actually "having sex with two or three of the males," allowed drug use and sometimes used drugs herself, and was an emotional volcano and chronic liar who manipulated the vulnerable men under her control, their limited freedom in part dependent upon what she told their parole officers about them.
It was to a subsequent meeting of Crown and police and Mr. Nelson's original trial lawyer, Ken Hall, that an Ottawa detective came bearing a computer printout of "hits" of Ms. Fordham's various contacts with local police, Mr. Hall said yesterday. He and Mr. Nelson both remember the total number of contacts as 55, with "seven being of a sexual nature," Mr. Hall said.When the mischief charges against Ms. Fordham were added into the mix, Crown attorney Scott Hutchinson consented to the so-called "fresh evidence" application filed by Mr. Nelson's appeal lawyer, Todd Ducharme of Toronto.
In court documents, Mr. Hutchinson said "the entire Crown case" against Mr. Nelson was Ms. Fordham's testimony, noted new evidence showed she "had deliberately fabricated complaints against other individuals" and joined Mr. Ducharme in asking the appeal court to set aside the convictions against Mr. Nelson.Mr. Hutchinson walked over to Mr. Nelson yesterday after the brief proceeding, shook his hand and warmly congratulated him.
Absent state misconduct or mistake, given Mr. Nelson's unwavering protestations of innocence and that he was vigorously represented at trial by an able defence lawyer, Mr. Hall, and given Mr. Nelson's demeanour (he has what Mr. Hall agreed yesterday was "an air of truth," just as some testimony has the unmistakable ring of it), what on Earth happened here that this shy, gentle chef should have spent 1,047 days of his life in jail, lose his business and nearly his life, and see his youngest son, while he was serving his time, be first abandoned by his mother, then taken into the care of a children's aid society, and ultimately adopted?
The answer would appear to be not only that Ms. Fordham is what Mr. Ducharme yesterday called "a complainant who is sophisticated and who lied," but also that she is, simply, female."This," said Mr. Ducharme, "is a cautionary tale for anyone who suggests that people who make allegations of sexual assault must be telling the truth because why else would they go through the process?"
That notion -- that surely no woman would put herself through the ordeal of having to testify in a public courtroom about such an intimate matter if the crime did not happen -- is the fuel that has seen sexual assault, like child abuse, like criminal harassment, or "stalking" as it is popularly known, become crimes apart from other offences.
Many such allegations have their origins in family and custody disputes; Ms. Fordham, for instance, was a close friend of Mr. Nelson's common-law wife, with whom he was engaged in an ongoing custody-and-access dispute over their son.
He was, in fact, in prison, serving a 120-day sentence for assaulting Ms. Fordham when she alleged that he had been following her with his car, trying to hurt her. When this became inarguable, Ms. Fordham simply said she had been mistaken about the alleged dates.
It was for this reason Mr. Nelson was denied bail pending his rape trial. As he put it yesterday, "I was already in jail for something I didn't do." It was shortly afterwards he tried to hang himself in his cell, saved only when his swinging feet kicked awake his bunkmate, who, Mr. Nelson said with a grateful smile, "almost broke my neck pulling me down."
At the sexual assault trial, Ms. Fordham hardly made a compelling witness.The alleged rape had occurred in the early morning of Feb. 28, 1996. When Ms. Fordham went to the hospital hours later, she complained only of assault, said she'd been beaten four days before by an ex-lover, described bite marks that were not found by doctors or nurses, and made no mention of having been raped.
It was only the following month that she first called police -- and again made no mention of any assault, which she explained in court by saying she thought the officer could figure that out for himself.Nine days later, when she saw her doctor, she claimed of pain and mentioned the alleged rape for the first time. Her first formal complaint to police wasn't until April 29 that year.
By the time Mr. Nelson was arrested, he had no specific recollection of the alleged night in question. He and his girlfriend, with whom he had another son, and her parents, tried to narrow the date down, but their evidence, collectively, was confused -- and understandably so, for indeed nothing particular had happened to them. Mr. Nelson had been at home, with his family.
Justice Fraser, in convicting him later, noted that their evidence was "lacking."The judge pronounced Ms. Fordham's evidence "not perfect," but he found her in the main to be credible. She was, in short, to be forgiven her confusions and contradictions; Mr. Nelson was not.
This was 1996: Advocates for sexual assault centres were in full flight; police forces across the country were getting the message that women did not lie about this sort of thing and that they should treat such allegations as gospel. Jamie Nelson was ripe for the plucking.
He was plucked; the tie went to the girl.
*Christie Blatchford can be contacted at firstname.lastname@example.org
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