James Cedar, 19 of Niagara St in St. Catharines was arrested and charged with criminal harassment and later had the charges dropped. (Pictured) Cedar, is caught on a surveillance camera installed at the St. Catharines home of Patricia Marshall. (Screen capture)

ST. CATHARINES - In what could only be described as a secret deal -- the victims didn't know about it, and the cops didn't know about it-- Niagara North Crown attorney Wally Essert quietly withdrew a criminal harassment charge against a Peeping Tom who had been caught, on tape, masturbating outside his neighbours' bedroom and bathroom windows.

On Feb. 8, Niagara Regional Police issued a press release -- which led to a brief item in this newspaper, and others -- regarding the criminal harassment arrest of 18-year-old James William Cedar after a homeowner in the north end of this city "noted evidence of an intruder entering the back yard and looking into the windows of the residence."

It was not the first time. Repeated tracks in the snow had provided the initial clues that something was amiss. That, and a dislodged drain spout.

But all was circumstantial.

However, within 24 hours of installing an infrared camera provided by a friend, complete with a monitor and an audio recording system, the homeowner suddenly had slam-dunk proof that her privacy -- and her childrens' privacy -- was not only being invaded, but violated.

From the monitor in her home office, she spotted someone in the backyard late at night and, according to the police report, "continued to observe live footage, recorded on video, of a suspect peeping into several rear windows of the residence and beginning to masturbate."

NEXT-DOOR NEIGHBOUR

The homeowner in this case is Patricia Marshall, a 46-year-old executive with an international humanitarian agency, and overseer of 500 employees, as well as a single mother of two young daughters still living at home -- Lindsay, 20, and Courtney, 19 today.

And James Cedar, now 19, was -- and still is -- their next-door neighbour on a quiet street in this city's north end.

On the night of his arrest, minutes after Patricia Marshall called 911, the Sun has learned that James Cedar admitted to police to frequent forays into the Marshalls' back yard under the cloak of darkness, peering though partially-closed blinds, seeing all three woman in various states of undress at various times, and then pleasuring himself.

The video taken the night of his arrest, a copy of which has been obtained by the Sun, leaves nothing to the imagination, and no reasonable doubt whatsoever as to what was being done.

Yet James Cedar, whose family retained the service of high-end St. Catharines lawyer George Walker -- most famous for "deal with the devil" plea arrangement for schoolgirl murderer Karla Homolka, wife of serial killer Paul Bernardo -- had the charge against him withdrawn.

The charge of criminal harassment, which became part of the Criminal Code in 1993, is usually associated with stalking, but is an umbrella charge that also encompasses such lewd behaviour as voyeurism.

When Bill C-20 was being enacted, The Canadian Resource Centre for Victims of Crime noted that voyeurism is a sexual disorder in which someone derives sexual gratification from secretly observing others undress or engage in sexual activity.

The Department of Justice's Consultation Paper noted that at least 20% of offenders go on to commit more serious sexual assault offences, with the victims resource centre noting that serial killer Paul Bernardo, who coincidentally used St. Catharines as his backdrop, began as a "Peeping Tom" while living in Scarborough and progressed to become a sadistic rapist and murderer.

When the charge of criminal harassment was dropped against James Cedar, however, there was no explanation given to the court.

It was simply granted.

The transcript of that court appearance before Justice of the Peace Mary Shelley, in fact, was all of nine lines long.

George Walker: Good morning, Your Worship.

CHARGE WITHDRAWN

JP Shelley: Good morning.

George Walker: James Cedar.

Wally Essert: Number 16 (on the docket), I believe.

JP Shelley: Has a designation been filed?

George Walker: Designation filed.

Wally Essert: I'd ask that the charge be marked as withdrawn, please.

JP Shelley: Thank you.

When Patricia Marshall heard of the charge being withdrawn without her knowledge, and without the knowledge of the police, she was appalled -- immediately writing Wally Essert, and demanding an explanation.

"When I called 911 that night, I was sick with fear," she says. "You could hear my heart beating through the phone.

"Today, it is no better."

To his credit, Wally Essert wrote back to Marshall, a long letter in fact, although parts of it sound as if it is coming from a defence counsel, not a prosecutor.

It reads, as follows:

"First of all, let me again apologize for keeping you in the dark in the way I handled the charge against Mr. Cedar," Essert begins. "You are correct. It is the policy of the ministry to involve victims in the process and it is the policy of this office. I have no explanation why it was not done and offer no excuses as it was an inexcusable and insensitive omission. But it was an omission; it was not a deliberate act or decision to exclude you to push through a secret, behind-the-scenes resolution.

"I am going to explain why I made the decision that I did. These are the only reasons that I made that decision; they have nothing to do with who represented Mr. Cedar or the size of his retainer (of which I have no knowledge).

"I did and continue to have some concerns about the charge that was laid. I have my doubts that a criminal harassment charge for a single incident as set out on the information would have resulted in a conviction.

"I reviewed Mr. Cedar's matter with a number of my assistant Crowns and they felt the same way. There have been convictions for one incident harassments, but these were charged differently and were the culmination of a history or relationship between the parties. The allegations here would not have fit that type of charge. Of course, each case turns to some degree on its own facts, but a trespass by night would have probably been more appropriate here.

"That being said, the police in this case did a good job of investigating the allegation against Mr. Cedar. He was properly given his Charter Rights and cautioned by the arresting officers. (Niagara Regional) Officer (Dave) Weeks's interview of him was very well conducted and resulted in informed admissions being made. I can see no reason why the videotaped statement would not have been admissible in court.

"These are the factors that I took into account in dealing with the matter as I did:

"The evidence suggests that Mr. Cedar initially saw one of your daughters through open drapes as she was changing while he was walking on the sidewalk between the two houses. This is not to suggest that she invited this but to point out that he was not targeting or stalking anyone in your household to get him to that situation. It was, of course, entirely inappropriate for him to continue his activities, especially to the point of entering your backyard with the hope of making similar observations.

"There is no evidence that Mr. Cedar ever used anything to facilitate his activities. He did not use binoculars or night-vision equipment to see better in the dark. He did not bring a ladder or step stool to make it easier to look into your windows. He did not make visual recordings of you or your daughters.

"There is no evidence that he took the trouble to stalk or follow or contact you or your daughters or kept a watch on your comings or goings.

"There was no evidence that he had ever attempted to enter your house either while you were home or while you were out. There is also no evidence that he ever possessed break-in instruments.

"There is no evidence that he ever engaged in this type of activity in the past or at any other locations. He is not a suspect in similar activities.

"He was just over 18 when all this started and socially and emotionally immature for his age.

"The object of his voyeurism was 'age appropriate'. Again, this is not to objectify your daughters or you or to suggest that what he was doing was in any way appropriate.

"If he had been peering at, for example, pre-pubescent boys or girls rather than someone his own age, it would have indicated other, underlying disorders, such as pedophilia. In that case, I would have handled the matter completely differently.

"Mr. Cedar's parents were extremely concerned by what their son was said to have done and took immediate steps to address these concerns. They took him to a psychologist even before they consulted counsel to have him assessed and treated.

"The psychological report, which was prepared by a forensic psychologist with a background in the criminal justice system, both federal and provincial, came to the following conclusions:

"Mr. Cedar was remorseful and accepted responsibility for his actions.

"As a result of being charged and identified in the media, Mr. Cedar and his family have suffered considerable embarrassment and loss of friends and so on.

"Appropriate therapy has been arranged and he is responding well to it.

"Apart from the behaviour that led to the charges being laid, Mr. Cedar was not diagnosed with any other disorders (such as pedophilia).

"In my view a primary objective in dealing with Mr. Cedar as I did was to 'avoid recidivation.' This is in his best interest and the best interests of society, including your family. The best way to do this is to have him willingly continue with his therapy. Part of this therapy is to help him develop 'normal heterosexual relationships' so that he does not 'need' to turn to voyeurism for his sexual gratification.

'CREEPY LITTLE PERVERT'

"At his age, labelling him as a sex offender would have two very negative consequences. It would make it even harder for him to develop those normal relationships and it would also cause him to view his treatment as futile as in, 'I'm doing what I can, but what's the point?'

"One may take the view 'So what? He deserves it ... the creepy little pervert!' But in my view this is very short-sighted and will probably increase the disorder and the problems that we are trying to treat and eradicate."

End of letter.

The Marshall home and the Cedar home are side-by-side. The sidewalk on the Cedar property that leads to a side entrance to their home passes within inches of Courtney Marshall's bedroom. No "ladder" or "step stool" is needed to peer into any window.

After taking a picture of the houses that accompanies this piece, James Cedar's father followed me around the block in his car, and then asked what I was doing once I had pulled over for a better camera angle.

He was then told who I was -- but refused to be interviewed, either one-on-one or with his son present.

On two occasions last month, following the charge against James Cedar being withdrawn, James Cedar has walked by Courtney's bedroom -- both times past 1 a.m. -- and has twice been captured on the video's audio, once saying "Courtney, get up!" and, another time, "Get up!"

All three women in the Marshall household now shower in a roughed-in basement washroom that has no windows.

"The fear we endure here is evident," says Patricia Marshall. "It comes out our pores."

MARK.BONOKOSKI@SUNMEDIA.CA OR 416-947-2445