Winnipeg Free Press - PRINT EDITION

Judge on leave; cases in limbo

Accused argue charges must be thrown out due to delay

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The sudden departure of a prominent Manitoba judge continues to be shrouded in secrecy and has put the fate of several criminal cases in legal limbo.

The Free Press has learned 15 cases are affected. All were in the hands of Judge Patti-Anne Umpherville when she suddenly left the bench in late 2012.

At least five of those prosecutions are unresolved. Some involve accused persons expected to fight to have their cases thrown out of court on the basis of unreasonable judicial delay.

As well, numerous resources have been used to deal with the issue, including reviews by the chief judge, consultations with numerous lawyers and the assignment of a veteran Crown attorney to handle Umpherville's cases. Those include reserved decisions on trials and sentencings, plus preliminary hearings that were underway.

This is a result of Umpherville abruptly stepping aside last winter for what sources say is a "personal medical leave."

It's led to speculation in Manitoba's tight-knit legal community about what happened, including whether she will return to the bench.

Chief Judge Ken Champagne said Umpherville remains on an indefinite leave of absence and is pursuing long-term disability leave. Her position on the bench has also been filled.

'The entire body of the evidence is potentially affected' -- defence lawyer Norman Rosenbaum

Officially, nobody will say why Umpherville stepped down. "Although court proceedings are open processes as they contribute to public confidence in the administration of justice, judges and court staff are entitled to privacy in regard to personal and health matters," Champagne said.

A veteran justice source told the Free Press Umpherville turned heads within the judiciary when she began piling up the number of reserved cases in the weeks before she left the bench.

"It was an unusually large number, definitely something people were noticing," the source said.

Crown attorney Vic Bellay was given the task of going through all of the reserved cases presided over by Umpherville.

About two-thirds of the 15 cases have been re-assigned to another judge. But Bellay had to go to court on a few occasions to fight to keep the prosecutions alive.

"When we became aware Judge Umpherville was ill, we wanted to look at all the cases that were outstanding," Bellay said.

Last summer, defence lawyer Norman Rosenbaum argued his client's rights had been violated by Umpherville's unexplained absence. The accused, who faces domestic-violence charges, had already been tried before Umpherville in 2012, with the credibility of the alleged victim the key issue. The judge had reserved her verdict.

The Crown argued a new judge should be assigned and case start from scratch because of Umpherville's departure.

"We know Judge Umpherville has been unable to continue with her duties. It was plain, I would submit, from the conduct, or her conduct, that is to say her absence from the courthouse, her not being assigned to new cases, that she was unable to continue her duties," Bellay told the hearing.

Rosenbaum said simply hitting reset and having a new trial before a new judge would be extremely prejudicial to his client.

"The entire body of the evidence is potentially affected," he argued.

But Champagne rejected his claim while leaving the door open for Rosenbaum to file a new motion for a stay of proceedings based on undue delay. He also told court Umpherville "isn't expected back."

"This now becomes a balancing act for the court," Champagne said. "There's a significant public interest in these matters being heard and decided in the courtroom."

Bellay said there has been at least one other similar motion that resulted in the same ruling. And he concedes he's still dealing with a handful of cases in which the result isn't clear, and there is the possibility of charges being dropped.

Champagne said about five of Umpherville's matters are still pending.

The province announced Umpherville's appointment to the court Sept. 18, 2007. A graduate of the University of Saskatchewan in 1997, Umpherville initially worked as a defence lawyer before becoming a prosecutor on domestic-violence cases for Manitoba Justice.

Hailing from the Onion Lake reserve in Saskatchewan, Umpherville -- who is of Cree descent -- was the second female aboriginal judge to be appointed to the provincial court.

In addition to sitting in Winnipeg court, Umpherville routinely handled monthly docket courts in Steinbach and Garden Hill/Island Lake, which have also been affected.

Sources say Umpherville was briefly in the office last Christmas, spending several days visiting her colleagues and working on some of her judgments. But no decisions were released, and she was gone by the New Year.

"I am fully confident that the administration of justice has not been brought into disrepute and that the court has been able to properly address the impact of Judge Umpherville's leave," Champagne said.

Republished from the Winnipeg Free Press print edition October 5, 2013 A3


Updated on Saturday, October 5, 2013 at 8:07 AM CDT: Effected changed to affected.

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