Edmonton’s ‘Mill Woods rapist’ exposes tough questions for justice system on how to handle case

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The man known as “The Mill Woods rapist” stood quietly in the prisoner’s box at Edmonton’s Provincial Court. He is 40 years old, with dark, shaggy hair and a beard, and, at over six feet and 460 pounds, is an imposing figure in an institutional orange jumpsuit.

Dana Fash committed two high-profile sexual assaults in the 1990s, and, more recently, stood charged with second-degree murder in the 2011 death of Jeanette Marie Cardinal, the first and only charge laid after a review of 21 homicide and missing persons cases involving Indigenous women in Edmonton.

But, when the murder charge was suddenly stayed last month, Mr. Fash was set free. His release immediately prompted a rare public-safety warning from police, which included his photograph.

“Dana Michael Fash is a convicted violent and sexually violent offender and the Edmonton Police Service has reasonable grounds to believe he will commit another violent offence against someone while in the community,” the warning read.

Mr. Fash was arrested a week later for breaching a reporting condition, then again released from custody after a bail hearing last week.

Now, with the convicted sex offender under conditions that include living at a specific residence and abiding by a curfew, his case is raising questions about how the justice system should handle a man who is believed to be dangerous, when he can no longer be held in custody.

“The truth is, he’s served a lot of time for what he did, and just because there’s this risk of danger, we don’t just simply put him back in jail,” University of Alberta law professor Peter Sankoff said in an interview last week. “There has to be something for which he’s deserving of that punishment to take place.”

Mr. Fash began making headlines in late 1994, after a pair of violent attacks on women in Edmonton’s Mill Woods area. In the first case, Mr. Fash, then 16, was spying on a 65-year-old woman through a window of her home, then forced his way inside by asking to use the phone. When the woman escaped, Mr. Fash caught her and sexually assaulted her at knifepoint, leaving her injured in the snow.

Less than a month later, Mr. Fash attacked and sexually assaulted a 44-year-old woman working at a school in the same area. On that occasion, he was armed with a pair of scissors and had his face covered with a scarf.

Though Mr. Fash denied any involvement in the attacks, he was linked to the crimes through DNA matches in semen evidence, blood samples from the crime scenes and cigarette butts seized after a police interview. During his trial in early 1997, court also heard that a footprint at one scene matched Mr. Fash’s shoe, and that he’d been seen in the area of one of the attacks.

Mr. Fash had one previous conviction for sexual assault as a youth, and was tried and convicted as an adult on the new charges. He was sentenced to a term of 15 years in prison, which was reduced to 12 years given the time he’d already spent in custody.

The judge at the time said the women had been “subjected to periods of abject terror,” and that Mr. Fash had expressed no remorse.

Mr. Fash had long completed that sentence by the time Jeanette Cardinal was found dead in her daughter’s apartment in north Edmonton on Feb. 7, 2011. Police identified Mr. Fash as a suspect within days, but he wasn’t charged with her murder until almost six years later, as part of the review into 21 cold cases involving Indigenous women.

Ms. Cardinal’s family had been looking ahead to a trial this spring when they instead learned the charge was being stayed.

“I honestly can't even say how I felt about it because I didn't know what to feel. I didn't know what to think,” said Jeanette Cardinal’s daughter, Theresa Cardinal. “I prepared myself for the past two years for a trial that I may never get to see.”

A spokesperson for Alberta’s Ministry of Justice and Solicitor-General wouldn’t comment on the reasons for the stay, saying in a written statement only that circumstances have changed over time, and that the decision was made by senior Crown prosecutors because “the existence of a reasonable likelihood of conviction no longer exists.”

“It is also important to note that the standard for a prosecution is higher than the standard for laying a charge, which is why the Crown may not always proceed with charges laid by police,” the statement read. “This is part of the checks and balances of the Canadian criminal justice system.”

Sources with knowledge of the case say one witness received a brain injury in a car accident and another died, and still another changed their story. Forensic evidence connecting Mr. Fash to Jeanette Cardinal can prove contact, but is not proof of any criminal offence.

“Given the evidence and everything, I understand [staying the charge], but still I can’t wrap my head around the fact that they released him,” Theresa Cardinal said. "As he does pose a threat to society, why did they even let him out?”

Mr. Fash has now been the subject of three separate public-safety warnings, but he has not been charged with any other sexual offences since 1994, and has been convicted of only one violent offence since then, an assault in prison. The charges he’s faced primarily include drug and property offences, and breaches of court-ordered conditions. In one instance in 2008, Mr. Fash fled from officers in Edmonton, but turned himself in to police in Vancouver a short time later.

Prof. Sankoff says he understands people may be concerned when they hear about Mr. Fash being released, but he notes that Mr. Fash completed his sentence for the Mill Woods sexual assaults a long time ago, and outside the alleged reporting breach, he’s not accused of any new offences.

“They stayed the charges in connection with this death because they believe there’s no likelihood of conviction. So we can suspect all we want about whether or not he may have been involved, but the evidence obviously wasn’t strong enough to support it,” Prof. Sankoff said. “So at that point the question is, ‘what can you do with him?’ And the answer is, ‘not much.’ He’s served his sentences for the crimes for which he was actually convicted.”

Psychological reports and parole documents about Mr. Fash describe a long history of criminal behaviour and psychological issues, including a rage expressed in attacks on “mother-figured women.” There was speculation, even in Mr. Fash’s teen years, that he may be a psychopath.

But the documents also show that Mr. Fash appeared to make progress at times, including completing 100 escorted absences without issue. And at one point, he was assessed as a low-risk to reoffend after taking specialized sex-offender programming.

Shannon Gunn Emery, a defence lawyer and former president of Alberta’s Criminal Trial Lawyers’ Association, says cases such as Mr. Fash’s raise complicated questions and can be a balancing act between the rights of offenders and the rest of the community.

“Even if you think that they pose a danger to the public later − and it’s a very difficult thing to assess what a person is going to do in the future − how many restrictions do we want to put on people?” Ms. Gunn Emery said.

She also raised concerns that issuing public warnings can further alienate offenders who are trying to rebuild a life outside of custody, and could create more dangerous situations.

“Naming the person may mean that person can’t get employment, can’t find friends to associate with, has no network of security, and how are they supposed to support themselves?” she said. “And if you push someone too far into that situation, it’s not surprising that they may go into areas that aren’t the best because they can’t get reintegrated into other parts of society.”

While individuals can face restrictions and even indefinite custody as a long-term or dangerous offender, those designations can’t be applied retroactively and can only be sought during sentencing for a new offence that caused personal injury.

The stayed murder charge can be recommenced within a year, but members of Jeanette Cardinal’s family say they aren’t hopeful.

“The way things have been going for our women all these decades, I’d be really surprised and relieved if something happens,” said Jeanette Cardinal’s cousin, Tina Lameman. “I sure hope it does, but I’m not counting on it.”