Charges against Priest Declared Nullity, by Andrew Seymour, Montreal Gazette, May 11, 2011

Charges against Priest Declared "Nullity"

By Andrew Seymour
Montreal Gazette
May 11, 2011

http://www.montrealgazette.com/news/Charges+against+priest+declared+nullity/4767088/story.html

Rev. James Jordan, a Catholic missionary priest from Kenya, leaves the Ottawa courthouse Wednesday morning after the Crown admitted it had failed to seek the attorney general’s consent to charge him with possessing child pornography in Kenya.

An Ottawa judge demanded answers from a Crown prosecutor Wednesday about how a Catholic missionary priest was allowed to spend two years facing a charge that he possessed child pornography, though the case was flimsy and even the charge itself was improperly laid.

Rev. James Jordan, who was accused of having pornography on his computer on a mission in Kenya, was charged in July 2009 while on vacation in Ottawa. The Criminal Code allows Canadian courts to handle charges against citizens and permanent residents for certain crimes allegedly committed abroad — particularly ones involving the sexual exploitation of children — as long as the provincial or federal attorney general approves. Without that approval, the charge can't legally be laid.

And assistant Crown attorney James Cavanagh had to tell Ontario Court Justice Lise Maisonneuve that the Crown hadn't sought or received that permission.

Jordan, 65, was scheduled to start a preliminary hearing Wednesday when the Crown abruptly changed course. The decision to abandon the prosecution was reached after consultation among several senior Crown attorneys, Cavanagh said.

Cavanagh admitted that even had the charge been laid properly, there was no reasonable prospect of convicting Jordan because of "serious issues" uncovered in the prosecution's case against him. That included questions about whether Jordan had exclusive possession of the computer in Kenya on which the child pornography was found, Cavanagh said.

"In order to proceed with a prosecution of offences alleged to have taken place outside of Canada, such as in this case, the attorney general's consent would be required. The Crown will not be seeking the consent of the attorney general to proceed with these charges in light of the evidentiary problems," Cavanagh said.

"As there is no proper information before the court, the proceedings are at an end," Cavanagh said.

"This charge never should have been laid to begin with, is that what you're saying?" asked Maisonneuve after hearing from Cavanagh. "Can you tell me how it is this charge has been in the system two years and two dates set (for preliminary hearings) . . . if it is as clear as you say it is?"

Cavanagh explained that there was "confusion" at the outset of the case because there were computers in both Canada and Kenya.

"I think that confusion led to this oversight," said Cavanagh, who admitted he discovered the error in April. "It should have been caught earlier."

Maisonneuve declared the charge "a nullity." That has roughly the same effect as dismissing it, but in legal terms the move means that because the charge was improperly laid in the first place, it actually never existed.

Jordan's lawyer, Gary Barnes, alleged outside of court that Jordan was deliberately targeted by a person who came to police with alleged proof that Jordan had child pornography.

That person's "entire motivation was malice," said Barnes.

"The police received a memory stick that somebody else says comes from his computer," said Barnes. "It's pretty clear now that isn't true."

Cavanagh could not comment any further on the circumstances of the case outside court.

Barnes couldn't say if Jordan planned to launch a civil lawsuit.

Jordan, who sat in the back row of courtroom, left the courthouse abruptly. He didn't want to comment, Barnes said.

Barnes asked Maisonneuve to formally dismiss the charge in court, something the judge said she couldn't do because the charge technically never existed in the first place.

"It's like signing a blank piece of paper," she said.

Barnes said the past two years have been "horrible" for Jordan, who was a member of the Missionary Oblates of Mary Immaculate, a religious order focused on Catholic missionary work in Canada and abroad, when he was charged in July 2009.

Jordan worked on a mission in Meru, Kenya and was helping local people to build a water system and working with Kenyans looking to join the Oblates, a spokesman for the group said at the time.

He is not from Ottawa and was vacationing in the city, the spokesman said, adding that Jordan had no previous disciplinary record with the order and had been involved with the Oblates since 1968.

"The impact is obvious," said Barnes. "It's terrible to have to wait two years for this to have to work its way through the system. . . . On a charge like this it is obviously much worse."

Contact: aseymour@ottawacitizen.com