Winnipeg Free Press - PRINT EDITION

Ex-guard alleges conflict

Staff prosecutor's replacement denied

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A former Manitoba Justice corrections officer, accused of assaulting an inmate, has lost her fight to see provincial staff prosecutors kicked off her case due to what she says is an appearance of bias and conflict of interest.

Lawyers for Brooke Sophie Klima, 31, were denied a court order this week that would have seen provincial Crown attorneys disqualified from prosecuting her and an independent prosecutor appointed by the government.

Klima said allowing a Manitoba Justice staff prosecutor to deal with her criminal case while she's involved with a labour grievance against the department, as well as a human rights complaint against it, creates a clear conflict of interest.

"It really looks like Manitoba Justice is more likely to proceed with the prosecution in these circumstances to protect the interests of their own department than if it were an independent prosecutor," defence lawyer Jay Prober argued. "There's no doubt in her mind that there is a conflict here and she feels as if it's some sort of vendetta."

Klima was fired from her job Sept. 20, 2012, weeks after she was suspected of assaulting a 40-year-old male inmate, court heard. Klima was arrested, charged with assault and released after turning herself in to police on Oct. 26, 2012. She is presumed innocent.

Through her union, she filed a grievance against Manitoba Justice the day after she was terminated and soon after launched a complaint against her ex-employer with the Manitoba Human Rights Commission -- a division of Manitoba Justice.

But instead of retaining outside counsel to oversee her criminal prosecution on an assault charge, the Manitoba Prosecution Service has hung onto the case and is seeking to set trial dates.

Prober argues this creates a clear conflict of interest and gives off a perception of bias.

A government Crown, however subconsciously, could feel pressure to deal with Klima's case in a way that doesn't compromise the department's position on legal issues arising from the non-criminal litigation, said Prober.

As well, there's a concern the government prosecutor won't view the case objectively because of the other proceedings, Prober added.

He pointed to the provincial policy on use of independent Crown attorneys, saying it clearly states criminal cases involving Manitoba Justice employees should be referred to outside lawyers.

"There can be no question there's the perception of conflict here," Prober told Judge Marvin Garfinkel. "Their own policy says there is."

A Free Press review of the September 2012 provincial policy on appointment of independent counsel suggests justice officials have discretion whether to appoint an outside lawyer when an accused person has a "general" connection -- not a direct one -- to the court process.

Prober argued the only reason he can think of why they're deviating from his interpretation of internal policy in Klima's case is to avoid spending extra cash. "It's got to be about money. It can't be any other reason," he said. "They want to save money."

The Crown currently conducting the Klima prosecution, Mark Kantor, told Garfinkel the law is clear: The attorney general is presumed to be acting in good faith when it comes to how it handles civil and criminal litigation.

"There's a presumption that we are in a position to properly, without bias, prosecute (Klima) in this situation," said Kantor.

"I don't see a conflict of interest," Garfinkel ruled, denying Klima's request. "The Department of Justice has many, many facets and units. Some of these are directly under the control or guidance or leadership of the attorney general. Others are independent," Garfinkel said.

Prober said he plans to appeal.

Republished from the Winnipeg Free Press print edition November 2, 2013 A14

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