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Crown's office under scrutiny

Questions raised after case that should have never gone to trial

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The recent acquittal of a man who wrongly spent five years under the cloud of suspicion he'd killed his foster son is raising concerns about the inner workings of the Manitoba Prosecution Service and how Crown attorneys ever let their case against him get to trial.

It's a sign of a serious problem, legal insiders and experts said, when the judge is considering the rare move of forcing the Crown to pay the man's legal costs.

Justice Deborah McCawley's ruling to clear the man of a second-degree murder charge for the November 2008 death of his 13-month-old foster son came with no caveats or qualifying language: The Crown presented no evidence that could have led to a conviction and charges likely should never have been laid, she said.

Winnipeg lawyer David Asper said he'd like to see McCawley compel all in the prosecutions service responsible for the case to explain to her in open court why they shouldn't have to pay the legal costs. It's vital in ensuring there's public accountability, he said.

"This would bring much needed transparency to a process that is largely unknown and unaccountable to the public except through the courts," Asper said.

"It would also provide some level of assurance that the Crown is adhering to both professional and democratic obligations that it not prosecute anyone unless there is a reasonable likelihood of conviction and that its in the public interest to do so."

It's not about "law and order," Asper added. "It's about the potential abuse of prosecutorial power and it has always been the case that we must be vigilant to protect ourselves from a sometimes overreaching state."

After hearing two days of evidence in a trial booked to last 23 days, McCawley asked prosecutors if they wanted to rethink their position after evidence suggested the case wasn't sound. She offered time for the Crown to consult with colleagues about how to proceed.

After a 44-minute adjournment, the Crown elected to "forge ahead" for six more days. McCawley finally quashed it on a "no-evidence" motion brought by the accused's lawyer, Saul Simmonds.

A major factor in her decision was the Crown's own medical experts testifying it was "impossible" for the child to have sustained the injuries in the "exclusive opportunity" time frame set out by prosecutors.

Court records suggest there were several opportunities for the Crown to review the case since he was charged by RCMP in January 2009, including after a preliminary hearing in 2010 where he was committed to stand trial.

The Free Press attempted this week to review Associate Chief Judge Shauna Hewitt-Michta's decision to commit the man to trial, but a transcript was unavailable.

A request for an interview with prosecutions director and assistant deputy attorney general Michael Mahon was not granted. The department would not comment on the case because it remains before the courts.

Meanwhile, multiple legal sources point to the existence of a Crown committee -- a group of senior prosecutors and management who vet decisions on serious or sensitive files such as homicides -- as being a potential source of friction.

A prosecutor who has conduct of a file often knows the strengths and weaknesses of the case best. But his or her opinion of how to proceed can be challenged or outright countermanded by the committee, said one justice source not authorized to speak publicly.

The opaque nature of the committee's process can foster frustration within other aspects of the criminal court system.

For instance, explained another source, a judge will offer an objective opinion about a case only to see the Crown take an opposing view after consultation with the committee, which has a reputation for taking a very "tough" stance in terms of plea deals and positions on sentencing.

"It's a symbol of mistrust of independent actors," said one defence lawyer, who requested anonymity due to the close working relationship between the defence bar and Crown's office. "It's a symbol of mistrust of people not being able to do their jobs or wanting to control the outcome."

Others take a more generous view of the Crown committee procedure, saying because a large number of provincial prosecutors currently have fewer than 10 years of experience, its vetting function likely provides for "uniformity" in decision-making across the department.

Some local defence lawyers simply expressed a desire to see the Crown committee's procedures become more open.

"While I understand it's an internal matter, the lack of transparency with respect to their process makes it hard to understand for judges and defence lawyers," said Scott Newman. "When I deal with a Crown attorney, we undertake negotiations and assess strengths and weaknesses of the Crown's case.

"To me, decisions by an unnamed Crown committee are a black box -- I don't know how they arrive at their decisions and the logic behind them."

A justice spokeswoman said in an email statement the department would "not share specifics on the nature of our internal discussions related to case management" nor does it track the number of times judges declined to order an accused to stand trial or dismiss cases based on no-evidence motions.

The spokeswoman acknowledged it was "very rare" for the courts to suggest or order costs against the Crown in criminal cases, and provided a "policy statement" regarding prosecutorial discretion and the test as Asper described.

Outside Manitoba, major provincial prosecutions departments (in B.C. and Ontario) make it clear through policy -- all published online for the public's reference and review -- that major decisions on whether a case should proceed should be cleared with senior management.

Manitoba only publishes a select few of its prosecutions policies online.

Republished from the Winnipeg Free Press print edition February 15, 2014 A6

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