A sex assault victim says a Toronto cop pushed her to drop the case. Was he trying to protect a child-rapist confidential informant?

The phone call came when the young woman was at work.

Her father walked into the small-town Ontario grocery store and handed her the phone.

On the other end of the line, she’d later tell detectives from the Toronto police Professional Standards Unit, was a man who identified himself as a Toronto police officer.

Two months earlier, in June 2020, she had told police her brother had repeatedly sexually abused her for months when she was 12 and that he threatened to kill her if she said anything. As a result, her brother — a man 13 years older than her and a convicted child rapist — was charged with multiple offences and had been twice denied bail.

She said the officer told her she should recant those allegations. According to her account, the officer said he was “working with” her brother — a claim she understood to mean he was a confidential police informant.

“He said I should drop the charges because it’s too much, it’s going to be too stressful. They are going to pin and poke at me and how it’s not really a believable story,” she said.

She said the officer told her over the phone exactly what to write in a letter to her brother’s defence lawyer, Coulson Mills. Her father faxed the handwritten note right from the store. Mills forwarded a copy to the prosecutor the same day.

“I want the judge and the courts to know that I am truly sorry about the allegations against my brother,” read her letter, which has been seen by the Star. “The incident never occurred. He had overdosed and I was worried he was gonna die, I just wanted him to get the help he needs from rehab for his drug addiction. I am truly sorry. Thank you.”

If true, the woman’s account of the August 2020 phone call suggests a Toronto police officer intimidated a witness and, in doing so, may have also revealed the identity of a confidential informant — a violation of the strict rules meant to protect secret police sources from retribution. Either action could result in serious criminal and disciplinary charges. But, according to the woman’s lawyer, although internal police investigators found the call did, indeed, come from a Toronto police officer, they couldn’t identify a specific officer and no charges have been laid, criminally or under the Police Services Act.

Instead of facing trial on the woman’s allegations of sexual assault, choking and death threats, her brother’s case suddenly ended late last year.

The Crown gave no reason in court for why the charges were stayed. The woman and her lawyer Emily Dixon say the Crown told them afterwards that the woman would not be able to testify about why she wrote her letter, and why she no longer stood by it, because it was legally impossible to identify her brother as a confidential police informant in a public court.

Without knowing which officer had made the phone call, they say the Crown told them, prosecutors lacked the evidence to argue the protections afforded to confidential informants should not apply because of an illegal act.

Meanwhile, the young woman, whose identity is protected by a publication ban available to sexual assault complainants, has been left feeling betrayed by the justice system that she feels has chosen to protect her brother as a possible informant over prosecuting him for serious sexual abuse. (The Star is also not naming her brother due to that publication ban).

“It just didn’t feel like it was fair. To me it just feels like (my brother) is being protected by the police and the law,” she said, adding that she cried when she was told the charges had been stayed.

“It’s like they would rather keep an informant than lose one to charges,” she said.

According to transcripts of her brother’s two initial bail hearings, Crown prosecutors had a strong case. His arrest in his previous case, for which he was convicted of grooming and raping an 11-year-old girl, had come only a few months after he had allegedly stopped sexually assaulting the woman, then 12, after his mother and another sister had become aware of the abuse, according to the unproven Crown summary of the evidence.

This alleged sexual abuse was not reported to police at the time. The woman said she went to police in June 2020 after her brother, recently out of prison, began speaking to her in a sexual way that made clear that he hadn’t actually reformed.

When she sent the fax recanting her allegations, the young woman said she was under pressure from some of her family and her brother to drop the charges. But even after the letter, the Crown was adamant about proceeding with the prosecution and a trial was set.

By late 2020, her lawyer Dixon said, it also became clear that the woman still wanted the prosecution to proceed and was willing to testify.

In early 2021, the young woman said she told the Crown and police about the phone call from the officer, whose name she didn’t remember, and the Crown said the police would investigate.

But, according to Dixon, the Crown also warned that if it turned out that her brother was indeed a confidential informant, that could throw a wrench in the case. This is because the identities of confidential police sources are protected by informer privilege — sweeping legal protection that prevents police and prosecutors from ever revealing anything that could identify an informant, with almost no exceptions.

“The identity of an informer can never be intentionally revealed in open court out of concerns that outing an informant may result in retribution against them,” explained defence lawyer Daniel Brown, who is not involved in the case. “Crown attorneys are duty-bound to protect an informer’s identity.”

That duty placed the Crown in a legal minefield, legal experts say. On one hand, they cannot allow the identity of a possible confidential informant to be revealed in court. On the other, they are tasked with prosecuting serious criminal offences.

“I’m not surprised that the case was tossed if there were any concerns about the leaking of the identity of an informant,” said defence lawyer Gerald Chan, also not involved in the case.

Because the allegation is that the accused person had been outed as an informant by a police officer, her brother would have standing to complain about “a pretty egregious abuse,” Chan said. “Assuming it happened, it’s abuse that was committed in connection with their prosecution, even it was ostensibly for their own benefit.”

The police officer’s actions would open the door for the brother to argue his prosecution should be stayed due to state misconduct, a hearing that would be difficult to have without revealing the informant’s identity in public court records, Chan said.

“The prosecuting Crown is certainly stuck between a rock and a hard place,” he said, adding: “But that doesn’t really address the injustice felt by the complainant in this case.”

Two detectives with the Toronto Police Professional Standards Unit were assigned to investigate the officer’s phone call in February 2021, according to emails between Toronto police Det. Marc Cioffi and Dixon that have been seen by the Star.

The young woman sat for an interview with these investigators about the phone call and, meanwhile, her brother’s trial, set for March 2021, was adjourned for the investigation to take place, Dixon said.

Months later, in June 2021, Cioffi emailed Dixon to say: “Our obstruct justice investigation involving (the case) is getting some traction.”

According to Dixon, Cioffi later told her over the phone that investigators knew the call had come from a Toronto police officer and wanted to set up another interview with her client, but that interview never happened.

In response to the Star’s questions about the woman’s allegations, Toronto police spokesperson Connie Osborne said the police cannot confirm the existence of any Professional Standards investigation unless charges are laid, either criminally or under the Police Services Act.

It remains unclear if the woman’s brother is actually a confidential informant for Toronto police.

“We would neither confirm nor deny if someone was an informant for the police for obvious safety, security and legal reasons,” Osborne said.

On May 4, 2021 — six months before his charges were stayed — the woman’s brother was released on bail with the consent of the Crown and with one of his sisters as a surety. No reason was given on the record for why the Crown consented to his release after vigorously opposing it just a year before.

Unlike at his previous bail hearings, the woman said she was not asked for her opinion on whether her brother should get bail.

His charges were finally stayed on Nov. 22, 2021.

“I definitely cried as soon as I heard,” the woman said. “The next day I was really depressed and in bed all day sleeping.”

The young woman said she repeatedly asked the Crown if there was any way the prosecution could keep going, and if they had any other ways to investigate the officer who made the phone call. But the decision to stay the charges was already made. And though the charges were stayed rather than withdrawn, a distinction that means they could hypothetically be revived, she has heard no indication that will happen.

She said she wanted what happened in her case to be made public because it is a miscarriage of justice.

“It’s not fair and he doesn’t deserve to get off with a slap on the wrist,” she said.

“The Ministry cannot comment beyond what is contained in the transcript and is part of the court record,” said a spokesperson for the Ministry of the Attorney General. The Crown, Corie Langdon, referred questions about the case to the ministry. The man’s defence lawyer, Mills, declined to comment.

The fact the case ended without any public explanation for why the brother’s serious sexual assault charges had been stayed — in a case involving allegations of serious police misconduct — is disturbing even taking into account the limits on what the Crown could say publicly, said Lisa Taylor, a former lawyer and journalism professor.

“We still have to expect that our justice system will walk as close to that line as it possibly can and give us as complete an answer as it can ... especially when we are talking about sexual assault cases, because we have such a lousy history of dealing with these,” Taylor said, noting that prosecutors too often rely on phrases like “no reasonable prospect of conviction” in lieu of a meaningful explanation.

The court system is intended to be open to allow for public accountability and scrutiny, and while charges may be dropped for good public policy reasons, that should be explained as much as possible, she said.

“It really goes against every bit of what the open court principle tells us: that justice must not only be done, but be seen to be done,” Taylor said.

Dixon says it seems like her client has been penalized for telling the truth and trying to expose witness intimidation.

“She was really forthright about something that happened to her, that was illegal,” Dixon said. “This officer and the accused get to hide behind the informant privilege.”

Alyshah Hasham is a Toronto-based reporter covering crime and court for the Star. Follow her on Twitter: @alysanmati