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Crown defends pursuing circumstantial case

Judge to rule on acquitted man's bid for compensation

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A Court of Queen's Bench judge is deciding whether to make the Manitoba Prosecutions Service (MPS) pay tens of thousands in legal costs to a man whom she recently acquitted of second-degree murder due to lack of evidence.

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A Court of Queen's Bench judge is deciding whether to make the Manitoba Prosecutions Service (MPS) pay tens of thousands in legal costs to a man whom she recently acquitted of second-degree murder due to lack of evidence.

Was it a weak murder case where public accountability required Manitoba prosecutors to put a dad on trial for the death of his foster son?

Or was it something more concerning -- a case of potential "tunnel vision" blinding the Crown to the point a wrongful conviction could have occurred?

These are among the questions a Court of Queen's Bench judge is weighing as she decides whether to make the Manitoba Prosecutions Service (MPS) pay tens of thousands in legal costs to the man, whom she recently acquitted of second-degree murder due to lack of evidence.

On Wednesday, the Crown defended its position to continue their prosecution of the man, who can't be identified due to a publication ban. He was acquitted Jan. 31 after his defence lawyers won a "no evidence" motion when the Crown closed its case.

Prosecutors accused him of second-degree murder in connection with the death of his 14-month-old foster son in November 2009.

However, evidence emerged at trial that clearly pointed to the man's innocence.

The Crown alleged he injured his foster son and caused a traumatic brain injury when he was the only adult at home. But the Crown's theory he had "exclusive opportunity" to fatally injure the boy within a two-hour time frame wasn't backed by their own medical experts.

"It is hard not to think that this is a case where a charge should not have been laid or, once laid, should not have been proceeded with in light of the Crown's own evidence," Justice Deborah McCawley wrote.

"The Crown has failed to provide any evidence on which a reasonable jury, properly instructed, could convict," she stated.

During the trial, McCawley offered prosecutors chances to reassess their case based on the evidence, but they elected to "forge ahead."

Manitoba constitutional lawyer Heather Leonoff defended that decision on Wednesday.

There was some expert testimony, she said, which appeared to support the Crown's theory.

"Trials have a lot of things happen in them," she said. "Witnesses don't testify exactly as you thought."

Leonoff conceded the case against the man "wasn't strong," but stressed it went to trial after a preliminary inquiry in provincial court.

There's a valid public interest in the Crown proceeding with trials -- even in circumstantial cases such as the one the foster dad was facing, she said.

"It was a case that met the standard of putting it before a court," Leonoff said. The Crown sometimes has to make "tough decisions," she told McCawley.

To order the MPS to pay the man's costs would amount to McCawley meting out punishment for the Crown exercising its lawful discretion, she said.

"You have to find something that is so different about the case, showing something that rises to the level... where what you are doing is disciplining the Crown," Leonoff told McCawley. The best the court could find is that there was a "mis-appreciation" by prosecutors of the strength of the case, she said.

"But that doesn't give rise to (paying) costs. It just doesn't," Leonoff said.

"It's a tough decision. In this case there was a very respectable witness prepared to say this child was injured shortly before he became unconscious."

Defence lawyers Saul Simmonds and Kristofer Advent took the opposite view, saying the evidence showed the Crown's theory wasn't sound.

"The only way they could even suggest (the dad) was culpable was to put him in this magic two-hour window in their theory," Simmonds said.

Simmonds said it was only after the Crown closed its case it suddenly advanced a new theory they hadn't yet raised: that the child had been a victim of "shaken baby syndrome."

"For the first time in five years of the case, the suggestion is now somehow shaking a baby," said Simmonds. "... How in the world?," he asked. "It was like whisps of smoke. You don't grasp for whisps of smoke when a man's life is at risk," Simmonds said.

The standards expected of prosecutors in a murder case are very high, Advent said, especially in a case where the evidence is circumstantial.

The dad -- known as a hardworking family man -- spent five years on bail, unable to contact his children because of the murder charge.

He drained his life savings to pay for his defence, his lawyers said.

McCawley will give her decision later this year.

james.turner@freepress.mb.ca

At what point should the Crown attorney's office be responsible for legal fees for an accused found not guilty? Join the conversation in the comments below.

Republished from the Winnipeg Free Press print edition April 17, 2014 B2

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