SOMBA K'E/YELLOWKNIFE
A mistrial has been granted in an assault case that's been dragging through the courts for more than five years after the Crown withheld an e-mail critical to the case.

NWT Supreme Court Justice Karan Shaner also ordered the Public Prosecution Service of Canada (PPSC) to pay the accused's legal costs in the case of Miroslav Hebik who was accused of slapping, choking and pushing two teenaged girls in a complaint initially made to police on Dec. 22, 2010.

The charges were stayed by the Crown four months later on April 12, 2011 but were recommenced on March 14, 2012. After a trial on June 27, 2014, Hebik was found guilty of two counts of assault. However, in her ruling on June 9, 2016, Shaner wrote that, "A mistrial was the only realistic option."

The decision hinges on an e-mail written by one of the teenage girls addressed to Barry Nordin, then the chief Crown prosecutor for the Northwest Territories, on April 19, 2011.

The defence never saw this letter. Its existence was referenced the day before Hebik was sentenced, in a victim impact statement.

Under Canadian criminal law, all documents, recordings, e-mails and photos must be disclosed by the Crown to the defence, even if that evidence reduces the chances of a conviction, as part of what's known as Crown disclosure.

The Crown argued that this letter was irrelevant - that it was not part of the investigation but instead pertained to the prosecution's decision to stay proceedings and dealt with information already produced for the defence counsel in other forms.

In an e-mail replying to a legal assistant who asked if the letter should be part of the Crown disclosure from July 10, 2010, Barry McLaren, the prosecutor who had control of the file at that time, wrote, "None of that material nor any office or PPSC memos is disclosure. The statements and police narrative are what they should be given."

The defence disagreed, arguing that the Crown had violated Hebik's Charter rights by failing to disclose the letter. Furthermore, as Justice Shaner wrote in her judgment, the defence argued that if he'd had access to the letter before the trial, he would have used it during cross-examination.

The defence argued that he would have used the letter to establish the complainant's propensity to exaggerate and possibly undermine her credibility.

"It is not a certainty that the result would have been different had Mr. Hebik's lawyer had the opportunity to cross-examine ... on the letter but that is not what is required," wrote Shaner in her decision.

"What must be demonstrated is that it could reasonably be expected to have affected the result. Given the lack of corroborative evidence, witness credibility played a critical role in the ultimate determination. It is reasonable in the circumstances to conclude cross-examination on the letter would have altered the outcome."

Almost more at issue, however, were the actions of the Crown.

"It is critically important the Crown's failure to disclose the letter did not arise from inadvertence or oversight," wrote Justice Shaner. "There was, rather, a conscious decision taken by the Crown prosecutor who had conduct of the case to exclude it."

Another defendant bearing a similar name, Hana Hebik, who is also facing an assault charge is due to appear in court today along with Miroslav Hebik.

Both are listed as having the same lawyer Ian MacKay. Yellowknifer attempted to clarify the relationship between the two and the nature of today's proceedings but was unable to by press time.

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