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Making sense of a tough decision

Staying murder charge was best Crown could do

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In a given week of observing the goings-on of the justice system, a quandary or two emerges.

This past week was no exception, mainly because of a single, less-than-minute-long court hearing.

Reporting on Manitoba prosecutors staying a first-degree murder charge against Drake Moslenko presented a series of practical and analytical challenges.

The practical problems one manages as best one can.

The goal, as I see it, is always trying to communicate to readers as much as possible to help them understand what's happened, even in cases covered by a publication ban.

Really, it's the analytical issues arising from developments in the Moslenko case which won't leave me alone, at least not yet.

Moslenko was the former boyfriend of a well-liked young Winnipeg woman named Kaila Tran.

The 26-year-old was stabbed to death in the parking lot of her Clayton Drive parking lot in June 2012, in broad daylight no less.

Since her death, one question has dominated people's minds: Why would anyone want to kill her?

Soon after, Winnipeg police arrested two men, Moslenko and Treyvonne Willis, and charged them with Tran's slaying.

Moslenko was alleged to have arranged to have Tran killed as a result of a dispute they had.

The public backlash against Moslenko in the wake of his arrest was strong and swift, even though he's presumed to be innocent.

Now, it's the Crown's decision to stay the charge that's being called into question.

After giving it sober thought, criticizing the prosecution isn't at all warranted.

It's perhaps based in a misconception of what Crown attorneys are and what they do.

The case against Moslenko proceeded in a normal fashion.

It recently was the subject of a preliminary hearing, where the evidence against Moslenko was presented to see if there was enough to send him to trial.

Toward the conclusion of the hearing, prosecutors lost a complex legal ruling that paved the path to their decision to stay the charge.

That happened a little over a week before Tuesday's hearing. Time has been granted to allow the Crown to consider what it would do.

The way I see it, Crown attorneys Dan Chaput and Richard Smith -- among the best and brightest prosecutors in Manitoba -- had three options, none of them great.

One, let Judge Michel Chartier rule on whether Moslenko should stand trial. Given his earlier ruling, the writing was likely on the wall.

Two, stay the charge and retain some control of the process. Manitoba Justice has a year to reinstate proceedings against Moslenko, even if that's unlikely to happen.

Or, perhaps most contentiously, there was a third option: Stay the charge in provincial court and directly indict Moslenko to stand trial for murder in the Court of Queen's Bench.

It's here the quandary really emerges.

Say if a direct indictment was preferred at this stage -- after Chartier's pre-committal ruling was made, and the Crown had a sense of where things were headed.

Some observers may say doing this would demonstrate the Crown's abiding belief in its case.

Taking a more nuanced view, though, one comes to the conclusion the use of a direct indictment at this point could be seen as the Crown doing an end-run around a judicial decision it didn't like.

Others still may see such a move as an abuse of process, as the direct indictment process wasn't really designed to let the Crown "go after" suspects, as it were.

One then has to factor in the overall professional obligations of a Canadian Crown attorney.

Contrary to what many people appear to believe, the job's central goal isn't to secure convictions.

The primary objectives are to ensure an accused person receives a fair trial, cases in the public interest are pursued when there's a reasonable likelihood of conviction and to ensure justice -- in the truest sense of the word -- is served.

There's a reason our court system has preliminary hearings, and Moslenko's case appears to be a great example of why that is so.

Now obviously seeing him "walk free" is obviously a bitter pill for some to swallow.

At the end of the day, the Crown choosing the second of the difficult options above was the only just choice.

I don't envy that, but I understand it.

The real issue we're left with becomes this: People -- as in the general public -- want answers, they want to know what happened here and how things got to this point.

It pains me to be left in a position where I can only say to readers: "trust me," the Crown handled this matter as best they could.

But that's the truth.

Answers about how and why poor Kaila Tran was killed, and who was -- or was not -- responsible will one day be revealed.

james.turner@freepress.mb.ca

Republished from the Winnipeg Free Press print edition June 22, 2014 A1

History

Updated on Monday, June 23, 2014 at 11:36 AM CDT: Corrects cutline

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