Don Smith ♦♦ Michael
Jackson ♦♦ Michael Cardamone
30, 2004 when Judge Baynton brought down his monumental judgment
regarding malicious prosecution, injusticebusters have heard
from many others who have stories which would appear to be malicious
prosecutions. This story is recent -- putting the lie to any
claims on the part of prosecutors that the Klassen/Kvello case
was "isolated" and that they have since "evolved."
has changed is that the "win at all cost" prosecutors
are now getting found out and nailed. Meanwhile, all over the
country, honest prosecutors are hanging their heads in shame.
case, a jury was hung at 11 to one in favour of acquittal. A
mistrial was declared and what did the Crown do? Went right after
an innocent man a second time. This time she got her conviction.
he was sentenced to 18 months house arrest. He is not allowed
to have Internet in his home (a condition which he is trying
to get changed because he needs access to legal info for his
appeal). Two of the jury convictions were stayed judicially because
of "reasonable doubt". So there are three convictions
which are being appealed. The notice of appeal was registered
Well, I'm another victim of
the Canadian legal system. I don't know how much I can tell you
at this time, but I'll give you a brief synopsis.
In June 2000, I was in my apartment
in British Columbia and was visited by two police officers from
the local constabulary. They entered my apartment without an
arrest warrant or any authorization and placed me under arrest
on multiple counts of sexual assault supposedly commited in 1990
in my apartment. The allegations were based on information given
by the police by two brothers. The police knew that these brothers
had several years earlier laid information against their father,
who was charged, and those charges were later stayed. The background
of the two boys is that they are from a very severely dysfunctional
family. The police knew this.
In the information presented
in 2000 by these two, now, young men, the police didn't get any
dates, but the one brother told the police that the sexual assault
had taken place when he was "twelve years of age".
It was the only information given re dates. The police officer
computed the date to be 1990 and then based the charges on that
date. The police also asked for a drawing of my apartment and
the one brother drew a floor plan of "my" apartment
showing a bedroom. My apartment was a bachelor suite.
Well, prior to arresting me,
the police had reliable information that I was teaching outside
of Canada in 1990. They ignored that information and arrested
That week, the police issued
a press release identifying me and stating that three young boys
had been sexually assaulted at my apartment. They gave a bunch
of dates in the press release that were incorrect and they had
no statement from a third boy.
A year later we go to preliminary
hearing. The first preliminary hearing was cancelled because
both complainants were "out of the province" and the
Crown admitted that they had forgotten to notify the complainants
about the preliminary hearing dates. So it was a year before
we got around to preliminary hearing. At the preliminary hearing
both brothers testified that they had been sexually assaulted
in my apartment. One brother also said that a friend had been
to my apartment twice. The friend testified that he had never
been to my apartment. Both brothers testified that the sexual
assault had taken place in had taken place in 1990. A trial date
Prior to trial (I elected BC
Supreme Court with jury), my lawyer submitted to the Crown my
passport information showing that I was nowhere in Canada in
1990. We went to trial anyway.
At the first trial, which ended
as a hung jury 11-1 for acquittal, the two brothers started to
vascilate under cross-examination and then came up with a whole
host of evasive answers: "I don't recall", I don't
remember and when asked when this happened stated that it could
have been 1990, 1991, 1992 - but certainly before their 14th
birthdays. Both brothers made different allegations, different
descriptions. Neither brother had seen any sexual activity concerning
the other brother - but they were both at the bachelor suite.
I got onto the stand, denied that there had been any sexual misconduct,
and brought out a timeline which stated that my first contact
with these brothers had been from July 1991 through to 1993.
My lawyer, after the hung jury,
went to regional Crown to urge him to stay the proceedings, Nope,
on to second trial we went. I had already formally complained
to the office of the Police Complaints Commissioner regarding
the misconduct of the police, false arrest, unlawfully entry
to my dwelling house, etc.
Another year later we went
to a second Supreme Court jury trial and the Crown mad all sorts
of emotional plays to the jury, including saying that I had sex
with a twelve year old boy (neither brother ever made allegations
other than simple masturbation) and twisted the story to fit
into my previously stated timeline - including impugning the
testimony of her own witnesses.
She got the conviction. Only,
now we find out that again the jury was tainted and that one
of the jurors had a son who had been sexually assaulted and one
of the jurors had been one of the infamous "Boys of St.
Meanwhile my reputation has
been totally ruined, I've lost my home and my life savings. Everything
that I own. And I've had a heart attack.
Sentencing is scheduled for
December 2003. I've lost $150,000 and am now on social assistance
and represented through a legal aid lawyer.
I've maintained my innocence
all throughout. The two boys lied. There's no witness, no corroboration,
and lots of holes in the boys' story. For example, when one of
the boys could not explain how he had been sexually assaulted
on my hideabed, as he had previously described, he simply created
a second hideabed in the living room. Then at the second trial
he pretended that he hadn't said anything about a second hideabed.
They stated that friends had been over to my apartment, but the
Crown can't find a single friend to corroborate the story.
They've backtracked several
times and yet I was convicted. Some of the people in the gallery
couldn't believe what they were seeing.
There's still a publication
ban so I can't go to the press. Apparently, now the Crown wants
to stay some charges after conviction. I think that's because
they're afraid of an appeal if I get jail time. I have no money
to file an appeal and transcripts from two Supreme Court trials
and a preliminary hearing are expensive. I don't want to let
the police and the Crown off the hook, but if legal aid doesn't
fund my appeal - the Crown will get away with this stuff.
Just thought I'd share this
stuff with you. I'm going to fight until I can't fight anymore.
Since posting this, Mr.
Jesternoudt has made contact with someone who is helping him
with his case. We understand it is going well.