The case against a Winnipeg man accused of failing to stop his wife from committing suicide is in danger of falling apart, the Free Press has learned.
The Crown's key witness went missing, only to be found days later in a B.C. hospital with critical injuries following a mysterious accident.
Christopher Paul Henderson, 46, was arrested in August 2011 on charges of criminal negligence causing death and failing to provide the necessities of life. A preliminary hearing was set to begin next week.
But Crown attorney Nancy Fazenda requested an indefinite adjournment Friday on the grounds there is no case to present at this time.
Fazenda said she sent a subpoena last month to a woman who will present the bulk of the evidence against Henderson. When she couldn't be located, Winnipeg police began hunting for her. They tracked her down to a Penticton, B.C., hospital after she fell from an apartment balcony, court was told.
"Obviously, she's in no position to attend court. She's vital to the Crown's case," said Fazenda. "This witness can give very insightful evidence into the mindset of Mr. Henderson."
She detailed the woman's injuries, which include multiple broken bones, severe internal injuries and a shattered pelvis.
No other details about the fall were provided.
The witness already underwent emergency surgeries and will require further operations, followed by a lengthy rehabilitation, court was told.
Fazenda estimated it will be until at least next summer before the woman might be available to attend court and testify.
That prompted Henderson's lawyer, Ryan Amy, to ask that the case be ordered to proceed against his client without the witness. If the Crown is unable to prove the case, then Henderson should go free, he argued.
"Without this witness, the Crown does not have a case," Amy said.
He believes Henderson would ultimately be acquitted, saying the Crown is attempting to provide a "novel legal argument" that will likely fail.
Amy said he plans to challenge the witness about her testimony, including her state of sobriety at the time of the incident that led to his client's arrest.
"He's been waiting for this matter to proceed. Mr. Henderson denies any criminal wrongdoing," Amy said Friday.
Henderson's 55-year-old common-law wife, Darlene Westaway, died in October 2010 after police allege the two were drinking at her residence and she threatened to kill herself.
Police allege Henderson left the home and returned later, finding the woman was dead.
Police claim some time elapsed before the man called emergency officials about Westaway's death, which is expected to be the main issue in the case.
Provincial court Judge Wanda Garreck agreed with the Crown's request Friday to adjourn the preliminary hearing, but ordered lawyers to return to court on Feb. 5 with an update on the witness's condition.
Amy reserved the right to file a motion to dismiss the case on the basis of unreasonable delay, and Fazenda conceded the Crown may have to re-evaluate its position.
Henderson remains in custody.
He was originally granted bail, only to be re-arrested for allegedly violating his release conditions.
Westaway's family and friends have told the Free Press she battled mental illness and believe her death should have been prevented.
They said Westaway, a former gas company employee, was diagnosed years earlier with bipolar disorder and her quality of life gradually deteriorated.