The Third Trial and the Allegation of Sexual Assault

At the outset, I should say that I have no doubt that Mr. Whitley is an able and conscientious Crown Counsel. I am sure that he is dedicated to the administration of justice, to the education of Crown Counsel and to establishing and maintaining a high standard for Crown Counsel. He has written on issues of criminal law. He has taken part in conferences and been instrumental in the preparation of a handbook for the Code of Conduct for Crown Counsel. Anything that I may say with regard to his conduct, or his actions in the third trial of Thomas Sophonow, should not take away from his record of dedication to the administration of justice. It is simply my role to determine what, if anything, went wrong with the investigation and prosecution of Thomas Sophonow. Despite my appreciation of Mr. Whitley's excellent standing, I am duty bound to make comments pertaining to his conduct where I deem it appropriate.

At the outset, I must deal with some concerns expressed by Mr. Whitley concerning these proceedings.

Mr. Whitley was the Senior Crown in the third trial. His junior counsel was Mr. Gosman. When Mr. Whitley attended before the Inquiry to testify on the second occasion, he expressed his concerns with regard to some matters. He stated that it was unfortunate that Mr. Gosman had not been called. However, I should repeat here what was said on the record during the Inquiry. On at least two occasions, all counsel were asked if they wished any further witnesses to be called and specific reference was made to Mr. Gosman. Neither counsel for Mr. Whitley nor any other counsel expressed a desire to have him subpoenaed or called. He would certainly have been called as a witness had any counsel expressed a desire to have him attend.

Further, Mr. Whitley expressed some concern that Commission Counsel had not told him prior to his first attendance what was required of him while that same counsel had briefed Mr. Brodsky on this subject. The difference, of course, was that Mr. Brodsky was appearing without counsel and, as I understand, it he was simply advised of the material upon which he would be examined. On the other hand, Mr. Whitley was represented by able and experienced counsel who was present or represented by Junior Counsel throughout all the proceedings of the Inquiry. His counsel would have briefed him carefully and thoroughly before he testified. Indeed, Commission Counsel advised Mr. Whitley's Counsel as to the matters which would be covered in his examination. In these circumstances, it might have been considered improper for Commission Counsel to have approached Mr. Whitley. With those comments, it is appropriate to consider his role in the third trial.

At the third trial, Mr. Whitley decided that he would lead evidence of a sexual assault. There is no doubt that some of the investigating officers, including Sergeant Biener, believed that there was a sexual motive for the assault and that there was a sexual element to it. However, the third trial was the first occasion that any evidence was called with regard to a sexual assault. At the preliminary hearing, on a charge of murder in the first degree, Mr. Myshkowsky, Senior Crown Counsel, did not suggest that there was a sexual component to the killing. Rather, he brought forward evidence of confinement and robbery which, if accepted, could have led to an indictment for first degree murder. In any event, Thomas Sophonow was ordered to stand trial on the charge of second degree murder following the preliminary hearing.

At the first trial of Thomas Sophonow, it was argued that the motive for the killing was robbery. There was clearly ample evidence to support that theory. Eyewitnesses had seen the killer close to the cash register. There was evidence that the $33.00 that the owner had put in the cash register at 8:00 p.m. as float money had been taken. As well, there was the evidence that the killer had taken a cardboard box from the Ideal Donut Shop and thrown it over the bridge when he was pursued.

Mr. Dangerfield, an experienced and very well respected Crown Counsel, recognized as a leading counsel in Manitoba, was of the view that there was a sexual element involved in the killing of Barbara Stoppel. However, as he advised Mr. Brodsky in a telephone call prior to the second trial, he would not be putting it forward because, in his view, there was no evidence to substantiate it. (Inquiry, Exhibit 159 - Document Brief, Vol. 8, re: Mr. G. Brodsky, pages 0085-86).

Thus, neither at the preliminary hearing nor at the first or second trials had any evidence of sexual assault been adduced.

Mr. Whitley determined that he would contend that there had been a sexual assault. What was the additional evidence that was not apparent to an able and experienced Crown Counsel at the preliminary hearing or the first or second trials?

Mr. Whitley relied upon the evidence that there was a great deal of saliva present on Barbara Stoppel's sweater. He also relied upon the evidence of a dental surgeon that a gag reflex could account for the saliva on her sweater. It should be noted that there was no evidence that Barbara Stoppel was particularly subject to a gag reflex. There could be no doubt that putting forward this position was extremely prejudicial to Thomas Sophonow. In my view, there is very little in the way of evidence to support this position. It is noteworthy that Chief Justice Hewak specifically instructed the jury not to consider the evidence of sexual assault.

Further, Justice Twaddle in the Manitoba Court of Appeal, in his reasons for allowing the appeal and setting aside the conviction, expressed the same opinion with great force and clarity. He stated: "Despite Crown attempts to suggest otherwise there is not a particle of evidence of sexual involvement between Barbara Stoppel and her assailant".

After reviewing the transcript of the third trial, I am in complete agreement with the reasons expressed by Justice Twaddle. There was suspicion and supposition but no evidence to substantiate an allegation of a sexual assault upon Barbara Stoppel.

Despite this opinion, it must be remembered that there should not be any undue interference with Crown Counsel's decision as to the manner in which a case is to be prosecuted. If there is a basis upon which a position could be put forward with regard to the prosecution, Crown Counsel should be permitted to do so without restriction. However, in this case, there was no evidence, or at best grossly inadequate evidence, upon which an allegation of sexual assault could be based. The evidence was so inadequate and the effect so prejudicial that the allegation should never have been made. Restraint was required to ensure a fair trial. That element of restraint was missing.

The effect of putting forward the allegation of sexual assault is apparent from the newspaper reports of the third trial. The Winnipeg Sun reported that Crown Counsel Whitley had described a violent sexual assault in the washroom. This report clearly indicates how extremely prejudicial the allegation was to the accused.

In his second appearance, Mr. Whitley referred to evidence of male DNA being found in Barbara Stoppel's mouth. However, this evidence only surfaced in the reinvestigation and would not have been known to Mr. Whitley at the time of the prosecution of the third trial. Nor is there any evidence to suggest whose DNA it might have been. It might have come from someone who was attempting to give mouth-to-mouth resuscitation to Barbara Stoppel. Certainly, it is clear that there was no indication that this DNA ever came from Thomas Sophonow. Thomas Sophonow at all times was anxious to have his DNA taken so he would be absolved of this tragic killing.

There is another aspect of this issue which adds to the gravity of putting forward this prejudicial evidence. Namely, the sexual assault allegation was not required. There was strong evidence available to demonstrate that robbery could have been the motive for the killing. This flows from the evidence of the eyewitnesses and two of the jailhouse informants who testified at the third trial to the effect that robbery was the motive for the killing.

There is one other aspect that must be touched upon. Mr. Rick Stoppel stated that Mr. Whitley and Sergeant Biener came to see him and other members of his family. He testified that Mr. Whitley said that there would be a position put forward at the third trial that there had been a sexual assault. He stated that Mr. Whitley and Sergeant Biener told him, and other members of his family, that there was no basis for this allegation but that it was being put forward to ensure that Thomas Sophonow would do "hard time".

Both Sergeant Biener and Mr. Whitley readily agreed that they did see the Stoppel family. It was their evidence that they went to see them so they would not be shocked and surprised by this evidence when it came out at the third trial. They said that it was simply to treat the Stoppel family as humanely and with as much consideration as possible that they advised them of this.

I cannot believe that Mr. Whitley and Sergeant Biener would have put forward "hard time" as the basis for calling the evidence. Rather, I think that Mr. Stoppel, who was a very decent and concerned witness, misinterpreted what was told to him and other members of the family. I should go on and add that I am satisfied beyond any question that Rick Stoppel did not put this forward as a basis for obtaining compensation for the Stoppel family. To suggest this is baseless and unfair.

There was criticism directed at Mr. Whitley for trying on the gloves thrown over the bridge by the killer. However, he readily agreed that he should not have done so. In any event, this was not a vital issue in the trial.

Questions regarding the use of the jailhouse informants at the third trial and matters that ought to have been disclosed at that trial will be discussed under the headings of Disclosure and Jailhouse Informants.

 

 

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