A former policeman acquitted of corruption charges years after prosecutors learned their star witness - his former girlfriend - had been sleeping with one of the Ontario Provincial Police officers investigating the case, has got a green light to sue two judges for malicious prosecution.
Mr. Justice Brian Trafford of Superior Court and Mr. Justice William Wolski of the Court of Justice were the prosecution lawyers who shaped the case against former Waterloo Region officer Kevin Roy Hawkins, charged in 1988 with selling tips to the leader of an outlaw biker gang and conspiring to obstruct justice.
After a tangle of proceedings that encompassed three Supreme Court of Canada hearings, the criminal charges against Mr. Hawkins were withdrawn in 1997.
Central to their collapse was the fact that one of the investigating police officers had been having sex with the key Crown witness, Mr. Hawkins's onetime girlfriend, and that, contrary to disclosure rules, Mr. Hawkins's counsel was not apprised.
Judge Trafford and Judge Wolski, elevated to the bench in 1993 and 1997 respectively, had sought dismissal of the case, saying it did not meet the conditions for a malicious prosecution suit.
Mr. Hawkins, 60, who quit the Waterloo police over the criminal charges, is now a realtor for Remax.
Launched in 1998, his suit also targets the Attorney-General for Ontario, the Waterloo Region police board and the three police officers who handled the investigation.
Mr. Justice Joseph Henderson of Superior Court has ruled that the case can go ahead.
"There are genuine issues for trial on all the relevant elements of the test for malicious prosecution," Judge Henderson wrote in a ruling last week that rejected the judges' motion for dismissal.
Mr. Hawkins's lawyers, Joe Fiorucci of Hamilton and Angelo Fazari of Welland, said they are content with the outcome, although it can be appealed.
"We feel it's a well-thought-out ruling, which reviews the history of the matter, and the litigation will proceed," Mr. Fiorucci said.
Andrew Heal, lead counsel for the defendants, could not be immediately reached. The ruling noted that Judge Trafford has maintained that disclosure of the relationship with the investigating officer was delayed out of concern for the safety of the witness, Cherie Graham, and there is an abundance of evidence that would support the initial concern for her safety.
A biker liaison officer with WRP since 1981, Mr. Hawkins was accused in January, 1988, of selling police information to Satan's Choice president Claude Morin, who was jointly charged.
The charges stemmed from tips from Ms. Graham, who also told police Mr. Hawkins owned unregistered guns and helped cultivate a marijuana grow-operation.
Mr. Hawkins says in his statement of claim that by October, 1988, everybody involved in the prosecution knew that investigating OPP officer Robert Frolic had had sex with Ms. Graham, by then in the provincial witness protection program, and that she wanted to recant the testimony she gave at Mr. Hawkins's preliminary inquiry in September, on grounds she had been pressured.
When the preliminary inquiry resumed in December, Ms. Graham told the court her initial evidence against Mr. Hawkins - with whom she had resumed a relationship and bought a house - was false.
In March, 1989, Mr. Hawkins and Mr. Morin were nonetheless committed to trial, and after a judicial stay that was overturned on appeal, it finally began in May, 1993.
Mr. Trafford was by then a judge, so Mr. Wolski led the prosecution and tried unsuccessfully to introduce as evidence Ms. Graham's original testimony.
But it was ruled inadmissible, and Mr. Hawkins and Mr. Morin were acquitted,
Then, Ms. Graham changed her mind once more, saying her original testimony was true. So yet another trial was ordered, Mr. Hawkins appealed that order, too.
In October, 1997, a new prosecutor, Tara Dier, withdrew the charges, telling the court Ms. Graham's string of conflicting statements offered no prospect of a conviction.
Traditionally, malicious-prosecution lawsuits are extremely problematic and none of Mr. Hawkins's allegations have been tested in court.
In their motion to have the suit dismissed, Judge Trafford and Judge Wolski contend on behalf of all the defendants that he had failed to make his case adequately.
But Judge Henderson pointed to two sets of circumstances - both acknowledged by the prosecution team - that he said he found troubling:
The fact that Ms. Graham told prosecutors she had lied under pressure from WRP officer Doug Lawrence; and the fact that while in the witness program, unbeknownst to the defence, she had been intimate with Officer Frolic, who was in effect one of her mentors.
What the prosecution team knew and when it knew it should be examined, Judge Henderson wrote in dismissing the motion.
"These factual issues will turn in part on the credibility of Trafford and Wolksi and the other defendants have not been fully explored … and should not be resolved on a summary judgment motion."