Winnipeg Free Press - PRINT EDITION

Woman loses fight to ditch her HIV charge

Crown tactic proper, judge says

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A Manitoba woman accused of sexual assault by allegedly transmitting HIV to a man through unprotected sex has lost her fight to get her case thrown out of court due to delay.

Marjorie Schenkels, 27, will face trial later this year despite her protests that Manitoba justice officials' tactics led to a serious breach of her fundamental right to have a trial in a reasonable time.


Direct indictments

It's not always the case that holding preliminary hearings before a full-blown trial advances the cause of justice.

Enter direct indictments -- a legal process allowing the Crown to bring a suspect before a superior trial court right away to deal with their charges.

In Manitoba, direct indictments have been most frequently used following major biker-gang busts involving a paid civilian informant.

The reasoning for doing this is it enhances witness safety because the informant won't have to be brought to court to testify multiple times.

Prosecutors will also prefer a direct indictment if there's grounds to believe witnesses or victims are in danger, will attempt to thwart the court process, or if age or health concerns mean testimony is needed quickly.

Because they're considered an extraordinary legal measure, prosecutors seeking a direct indictment must obtain the consent of their superiors and the deputy attorney general of the province.

Where it gets murky, however, is this: There's a general rule that defence lawyers should be notified direct indictment is being considered and their input requested "on the merits of the case and the procedure." Defence lawyers complain they seldom are offered this opportunity.

Because even though provincial policy says defence lawyers "must" be consulted, that requirement doesn't apply when the attorney general is persuaded there's good reason not to consult, such as when there are "reasonable concerns" about the safety of witnesses or victims or concerns a suspect might flee.

Only a tiny handful among thousands of cases a year in Manitoba proceed by way of direct indictment.


-- James Turner


Justice Colleen Suche ruled this week Schenkels' case hasn't been hampered by officials' behind-the-scenes decision to directly indict her for trial in Court of Queen's Bench.

It remains unknown why, in August 2013, justice officials elected to use the rare procedure against Schenkels mere days before her preliminary hearing in provincial court was set to begin in Gimli. The decision means she lost her chance to have a preliminary hearing and test the Crown's evidence.

Manitoba Prosecution Service policy states directly indicting a suspect is an "extraordinary step," to be used only where exceptional circumstances justify it, such as the health and security of witnesses.

'I have lived with the shadow of a very serious criminal charge hanging over me. I have lost sleep, suffered from stress and anxiety and constant worry'

-- Marjorie Schenkels, 27, who argued her fundamental right to have a trial in a reasonable time was breached

But Schenkels and her lawyer, Ian Histed, say they've never been given a reason why direct indictment was used in her case. As well, they say they weren't offered a chance to make representations to the attorney general's office on the issue, as provincial policy suggests they should have been given.

"I have been denied my preliminary inquiry by the Crown and have suffered prejudice to my right to make full answer and defence and to my right to be tried in a reasonable time," Schenkels states in a court affidavit.

"I have lived with the shadow of a very serious criminal charge hanging over me," she said. "I have lost sleep, suffered from stress and anxiety and constant worry."

Schenkels was arrested May 31, 2012, and charged with aggravated sexual assault after a four-month RCMP investigation.

Police allege between April and November 2011 she endangered a man's life by failing to tell him she was HIV-positive before having unprotected sex with him. Hers is the first such case in the province where a woman was charged.

By October 2012, dates had been reserved for Schenkels' preliminary inquiry in Gimli provincial court in September and October 2013.

But about a week before the hearing was to start, Histed got official notice prosecutors were directly indicting Schenkels.

She was rearrested a few days later, put before the Court of Queen's Bench and quickly released again on bail conditions.

Histed argued the timing of the move led to an "unreasonable" overall delay of 30 months before a jury trial will start and conclude this December. He pinned the delay on the actions of prosecutors. "The Crown could have directed the indictment a year earlier and shaved a full year off the delay," he argued.

Prosecutors, however, told Suche that Schenkels hasn't suffered any "substantial prejudice" from a delay in completing her case, which they say mostly involves the time normally required for a prosecution of this nature. They also argued there were occasions where decisions by the defence impeded the progress of the case.

"The Crown has consistently demonstrated efforts to move this matter forward to a resolution," stated Charles Murray, a constitutional lawyer for the province.

Parsing the reasons why officials moved to directly indict Schenkels plays no part when a judge looks at whether there's been unreasonable delay, Murray added.

"The law is clear -- the Crown is not obliged in any respect to advise the accused of the reasons for proceeding by direct indictment," Suche said.

Unless some evidence emerges that there's been some improper motivation by prosecutors, "the Crown is not obliged in any fashion to reveal its decision-making process or the basis for same," Suche found.

In Schenkels' case, it appears the use of a direct indictment actually sped matters up, Suche said. It would be "rare and unusual" to see a serious charge tossed out for delay, she added.

Republished from the Winnipeg Free Press print edition April 4, 2014 A4

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