Complainant’s lawyer who sparked Frank Stronach’s odd sex assault mistrial blames defence and bad decisions

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Shemesh replied that her client would want to understand the basis for the claim and pointed out that A.S. had worked for Stronach for six years after the encounter.

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Wagman then summarized to her the complaint: That A.S. was traumatized by the events; worked for Stronach under fear; had relationship problems for 40 years afterward the encounter; still lives with the pain; and courts do not blame the victim, according to Molloy’s written reasons.

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“If you prefer the statement of claim route, that’s no problem. I just thought to try and settle this would be mutually beneficial,” Wagman wrote, according to the court record. In reply to questions from Shemesh, Wagman added: “She was humiliated when she saw Mr. Stronach at work and he often smirked at her, knowing what had taken place.”

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This portrayal was much different from what A.S. had said during her testimony at Stronach’s trial.

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In Molloy’s written reasons, the judge noted the rarity and seriousness of the decision she faced.

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“Declaring a mistrial is a remedy of last resort,” Molloy wrote.

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“One of the most difficult tasks facing any trial judge is making credibility findings. Sexual assault trials are among the most difficult for credibility assessments because there is rarely corroborating evidence or testimony from anyone other than the complainant and the accused, and sometimes just the complainant. When the case involves a historic sexual assault, the task is even more difficult.”

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That is precisely why the exchange between Wagman and Shemesh was so troubling for her.

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Molloy wrote that she found Stronach guilty because she believed A.S. was telling the truth about her encounter with Stronach during her testimony in court.

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“I based that conclusion in large measure on some factors that are now called in question,” Molloy wrote. The new information would require her to make a fresh credibility assessment.

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“I am not confident that any future analysis of A.S.’s credibility based on new evidence would be unaffected, at least to some degree, by my previous reasoning. I would like to think I could do that objectively, but it is difficult to say that my previous findings would not affect my assessment, even if unconsciously. More importantly, I am concerned about how a reasonable person would perceive my future decision,” she wrote.

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“If I were to find that I still believed her core evidence about the assault, would I be seen as having difficulty admitting that I was wrong?”

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Molly said she could not ignore the emails: “I know what it was that persuaded me to find that A.S. was telling the truth, and many of those things are directly contradicted by the emails from Mr. Wagman.”

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A.S. claimed at trial that Stronach invited her up to his waterfront apartment to see the view and then kissed and groped her over top of her clothing. She often minimized the harm done to her rather than amping it up, which added to her credibility, Molloy said, because it “is not typical of a person with a motive for financial gain.” During her testimony in court, A.S. said that after the encounter she was hired at Stronach’s large company, Magna International, had a good experience there, and that Stronach was polite and professional when she saw him at work.

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Molloy said she wondered whether A.S. should be recalled to the stand, or if Wagman should be called to testify. She decided against either action because it didn’t much matter what they said, Molly wrote, because “all roads lead to a mistrial.”

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Wagman said in an interview that he was surprised his emails triggered the hearing and led to a mistrial.

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“I never thought this would happen,” he said.

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Wagman said he only contacted Shemesh to get in touch with Stronach’s civil lawyer to discuss a proposed lawsuit, after he was contacted by A.S. about suing.