Tim O’Brien has made peace with the fact that the woman who falsely accused him of sexual assault will never see the inside of a jail cell.
But he’s not ready to move on from how the case was handled by his former colleagues at Newfoundland and Labrador’s provincial prosecution service.
O’Brien — who was a provincial Crown prosecutor when charges were laid against the woman in 2023 — said he was treated with a lack of respect and wasn’t informed of key decisions. He believes the process was tainted with bias and should have been handled by outside lawyers.
“I don’t know if a different prosecution service would have handled it differently, but I would be shocked if I was treated with less respect than they treated me with when I raised those concerns,” O’Brien told CBC News in a sit-down interview last week.
O’Brien is now calling on the provincial prosecution service to implement firm rules on conflicts of interest to avoid similar situations in the future.
Michael Spratt, an Ottawa-based criminal defence lawyer and legal commentator, agrees.
“Even if bias doesn’t exist, we need to take steps to make sure there isn’t even the perception of bias,” Spratt said. “And the basic first step … is making sure that colleagues don’t interact with other colleagues as witnesses, or complainants or victims. And that wasn’t done here, which is shocking.”
Former N.L. Crown prosecutor calls for tougher conflict of interest rules
Spratt said the province shouldn’t need a conflict of interest policy, but one would have prevented the problems O’Brien is alleging.
“That’s definitely something that is common sense, but if people aren’t acting in accordance with common sense, we should put it in black and white.”
In statements to CBC News, both the Department of Justice and the director of public prosecutions declined to comment on O’Brien’s complaints, saying it would be inappropriate to comment on a case still before the courts.
The situation began in 2022, when O’Brien was prosecuting a sexual assault case where the complainant was a young woman from another country living in St. John’s. Her identity cannot be revealed because of a publication ban.
The young woman told O’Brien she wanted to recant her statements. She told him she would refuse to participate if it went to trial, but O’Brien believed there was enough evidence to proceed without her testimony.
According to the agreed statement of facts, she then sent O’Brien an email, threatening to report him to the police for sexual assault if he wouldn’t drop the charges.
The police launched two investigations — one into O’Brien for sexual assault, and one into the woman for extortion.
O’Brien lived under the uncertainty of the investigation for nearly a year, until the Royal Newfoundland Constabulary arrested the woman and charged her with extortion, unlawfully intimidating a justice system participant and public mischief by making false statements.
The prosecution was assigned to Kathleen O’Reilly — who had worked in the same office as O’Brien for over a year when he first joined the provincial Crown.
“From the outset I had concerns with the conflict issue given my proximity to the people involved in this prosecution,” O’Brien said. “And the decision to have it handled the way they did struck me as odd at the time, but I was never consulted first nor last on it.”
O’Brien was unhappy when the case was transferred to the province’s mental health court, which signalled to him that a sentence without incarceration was incoming.
O’Brien said he became very concerned this past January, when O’Reilly told him her suggestion for sentencing — 90 days of house arrest and two years of probation.
“Once we had that conversation, the reality of the situation became apparent to me,” he said. “I raised some concerns but they were never really taken that seriously, and it only got worse.”
The case took another turn in late January, when Judge Lori Marshall recused herself from a sentencing hearing upon learning O’Brien was the victim. Marshall told the court she was in a conflict of interest, since O’Brien frequently appeared before her as a lawyer.
At that appearance, O’Brien learned that O’Reilly had reached an agreement with the woman’s defence lawyer to drop the extortion charge and move forward with guilty pleas on the lesser offences.
“The first time I heard about this was on the courthouse steps,” he said. “Extortion is, by all accounts, a significant criminal offence. That’s something that you would expect to have a conversation [about] prior to court.”
Following that, O’Brien said he again made a request to O’Reilly and Lisa Stead — the province’s director of public prosecutions — to send the case out to another agency.
He said they cut off all contact with him following that meeting.
“The prosecution forged ahead without my input,” he said.
The province’s public prosecutions guidebook gives Crown attorneys wide discretion in how they handle individual cases. Prosecutors are required to consult with senior members of their office in certain circumstances, but are not required to consult with victims of crime before making decisions.
However, the guidebook does state prosecutors should keep victims informed when a resolution has been reached, or when charges are being withdrawn.
The sentencing hearing took place on March 4, with Judge Kymil Howe from Corner Brook appearing by video.
Defence lawyer Jonathan Noonan explained why they wanted the case sent to mental health court, saying the woman grew up in a refugee camp and had post-traumatic stress disorder and borderline personality disorder.
He said there was a clear link between her mental health challenges and the charges she was facing.
O’Reilly said the woman first met her partner at the refugee camp, and he later began to pursue her at the age of 15. She married him at 16 and had a child. By the time she was 18, she was living in a shelter for women fleeing domestic violence.
Noonan agreed with the Crown’s sentencing submission, saying it was in her best interest to avoid jail time — despite the seriousness of the allegations.
The woman is expected to be sentenced on April 16.
O’Brien said he’s not at a stage yet where he can forgive the woman for subjecting him to a sexual assault investigation, but he hopes to get there one day.
For now, he’s hoping this case highlights the need for stricter conflict of interest guidelines moving forward. The province currently has no hard rule on when a case should be sent to an outside agency.
The experience has also given him more insight into what victims of crime feel when their cases move through the justice system. Despite being a lawyer for 15 years, O’Brien said he felt blindsided by how the process unfolded.
“Even with that experience and insight, I felt completely lost in this process and completely disrespected. It’s really harrowing, that if someone with my background feels lost, I can only imagine what other victims of crime are feeling like in this system as well.”
Download our free CBC News app to sign up for push alerts for CBC Newfoundland and Labrador. Sign up for our daily headlines newsletter here. Click here to visit our landing page.
