A provincial Crown prosecutor whose mistake led to the collapse of a child-sex abuse case in 2010 is no longer working for the Department of Justice.
Michèle Hébert admitted during a 2010 voir dire hearing held in a Bathurst courtroom that she had shown a videotaped statement to the key witness in the case, a nine-year-old girl. That led to the collapse of the prosecution when the judge declared a mistrial.
The accused man was later acquitted.
While Hébert argued she had shown the girl the video by mistake, Justice Gladys Young ruled it was “more logical” that it was “an intentional act.”
“The consequence, of course, of this is an unfair trial, and abuse of process,” Young said, according to a court transcript of her June 16, 2010 ruling.
“I find that Crown counsel’s conduct was inappropriate and demonstrates an unacceptable degree of negligent conduct which amounts to an abuse of process.”
Justice Young said showing a witness an image of an accused that they will later have to identify in court, in front of a jury, “should never be done.”
Identification of the accused by a witness is a key element of the Crown proving its case beyond a reasonable doubt, says University of New Brunswick law professor Jula Hughes, an expert in criminal procedure.
“It’s not enough to show that a crime occurred somewhere,” Hughes says.
“It’s important to show that the person who is accused is the person who committed the crime.”
Hughes says once the child witness was shown the video statement by the accused, there was no longer any way the jury could be sure she would have been able to independently identify him as her abuser.
No longer a provincial employee
Hébert had worked as a prosecutor in Tracadie-Sheila since 2003.
She is no longer listed as an employee of the Department of Justice, though the provincial government is refusing to discuss her departure.
She is listed in the directory of the Law Society of New Brunswick as a "non-practising" lawyer. Her husband is Adam Chiasson, a former political assistant to Deputy Premier Paul Robichaud during his tenure as a minister in the Bernard Lord government.
CBC News attempted to contact her through a Shippagan lawyer, Marc Guignard, but he did not respond to repeated calls.
The Law Society of New Brunswick won’t say if there is any complaint against Hébert. The society’s proceedings against a lawyer only become public if a case is referred to its discipline committee.
The mother of the alleged victim told CBC News she did not want to discuss what happened.
The trial took place in Bathurst. The case only came to light this month when CBC News viewed the court file.
Sexual abuse testimony
The girl, who cannot be identified by court order, testified she was around four years old when she was sexually abused by a man who lived next door to her grandmother.
She testified during the trial in May and June of 2010 that several different times, the man had undressed her and tried to penetrate her. She said he told her to keep quiet about what he was doing.
During the earlier preliminary inquiry in October 2009, she had been uncertain about whether she would be able to identify the man.
“I don’t remember very well,” she said then, according to a court transcript.
But at the 2010 trial, she pointed out the man in court. When his defence lawyer asked the girl why she was able to identify him now, the girl replied, “I remember today because I watched a video of him not long ago.”
It emerged that the previous week, during a meeting with Hébert, the girl had seen a DVD that included the accused man’s statement to police during their investigation. She said Hébert also told her where he would be sitting in court.
'She loaded the dice in her favour'
The accused man’s lawyer, Martin Siscoe, later objected to the girl’s testimony. That prompted Justice Young to send the jury out of the room and hold a voir dire hearing to decide what to do.
Siscoe argued that Hébert’s action had tainted the child’s testimony.
“She loaded the dice in her favour,” Siscoe said.
Justice Young removed Hébert as prosecutor and summoned the senior prosecutor in Bathurst, Paul Veniot, to take over so that Hébert could be put on the stand to testify about her actions.
Hébert said showing the girl the video was an honest mistake. An earlier copy of the DVD with the statement hadn’t worked, and she’d asked police for a new one. It arrived during her meeting with the child and her mother, Hébert testified during the voir dire.
“I was checking to see if the DVD worked properly,” she said. “It wasn’t done in an intentional manner. I did not say, `OK, look at him, that’s him.’”
Justice Young asked: “Were you concerned at all about the fact that — about what you had done, about showing the DVD in her presence?”
“No,” Hébert answered.
“Now that we’re here and where we’re at now, I realized that maybe I should not have done so.”
In her ruling, Justice Young said Hébert “was rather equivocal as to the categorization of her conduct.”
The judge was skeptical of the coincidence of Hébert receiving the DVD during a meeting with the witness and deciding to check that it was working while the girl was with her.
The judge said if Hébert had presented other evidence to identify the accused, the showing of the video to the witness might not have led to a mistrial. But the prosecutor had called only the girl and her mother as witnesses, and she was not allowed to go back and add more evidence to the case after the fact.
In December 2010, the Crown office in Bathurst reactivated the case against the man, but merely as a formality. The Crown entered no evidence and the judge entered an acquittal into the record.
The information from the voir dire hearing had been subject to a publication ban, but the ban expired once the man was acquitted.