Winnipeg Free Press - PRINT EDITION

Is Kyle Unger’s case just a legal lottery?

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Kyle Unger is suing the cops and some lawyers for $14 million. That's a lot of dough. However, workplace indemnification means it will be the taxpayers footing any payday, so the province shouldn't be too quick to settle with our money.

At least not yet.

Two decades ago, Brigitte Grenier, a blameless girl with an intelligent smile, was killed. Unger was one of two men charged in connection with the slaying.

As the case snaked its way through the legal system, the second man committed suicide. Unger was convicted and went to prison. It was several years before a file analysis by several defence-minded federal attorneys identified some shortcomings and recommended that Canada's justice minister step in.

There was a new trial, and when the Crown called no evidence, Unger was freed forever.

Some reports describe Unger as an innocent man, cleared by DNA, in an explanation that is as simplistic as it is overstated. The now-discredited hair evidence that once offered a possible link between Unger and the murder was a piece of the evidentiary pie and could never, ever have been the foundation for conviction. In fact, trial transcripts are clear, with an RCMP scientist stating that the hair was "not a positive means of identification."

The biggest beef, however, comes from the RCMP's embarking on a "Mr. Big" project. "Mr. Big" was a sting operation that saw Unger confessing to Brigitte's murder.

Unger's camp says it was a trick. (Undercover operations naturally involve trickery, and Mr. Justice Benjamin Hewak ruled that the police actions were proper and did not run contrary to public policy.)

Most of us, me included, don't have Clue No. 1 about this case, but I have spoken to the RCMP, and privately it's been said that officers were exceedingly frustrated by the provincial Justice department's decision to toss in the towel.

I'm told the evidence remains strong, even with now-debunked forensic matters. Still, time has a way of chipping away at even the most solid cases, and after 20 years, any re-prosecution is difficult. Maybe it's some sour grapes coming from the Mounties. Maybe not. Either way, the case is finished.

Unger is claiming full innocence and demanding big compensation. Meanwhile, the red flags are being hoisted, especially given that former NDP justice minister Dave Chomiak says that while Unger is not guilty, it's not the same thing as being innocent of Brigitte's murder.

Chomiak gets what many don't -- that there's a huge difference between wrongly convicted and innocent. One doesn't necessarily follow the other. We should wonder what Chomiak knows when he's quoted saying that the "conclusion is not clear or clean-cut," adding that Unger doesn't deserve compensation.

More information is in order if government is considering a taxpayer-funded deal.

Unfortunately, the only way to get the scoop would be an expensive legal process, complete with batteries of lawyers, a retired judge playing adjudicator, people seeking standing (and their lawyers), clerks and recorders.

There have been reported inaccuracies in Unger's confession, things that were plain wrong as he spilled his guts while seeking the favour of "Mr. Big."

That's hardly newsworthy. In the circumstances of frenzied murder against a backdrop of an outdoor 1990s concert, there might be a legitimate fear of cooked evidence if everything had lined up nice and tidy.

With $14 million on the table, though, the right thing is to publicly offer a juxtaposition of what he got wrong against what he got right, especially if he spilled information that only the real killer would know. Is there such evidence?

Unger has won his freedom, and that's the right thing if he's been wrongly convicted. But because wrongly convicted and innocent can be two entirely different entities, Unger may not deserve to become an instant multimillionaire.

Independent of a justice minister's harboured concerns, it must be Unger's job to prove his case is worth millions. And he can only do that by showing us all why he is innocent and dispelling any notion that he won more than a technical legal lottery.

All the evidence, not just the stuff that makes the case appear weak (most cases have weaknesses), should be put to an adjudicator and an informed panel who could be shepherded through the material by lawyers who have a genuine enthusiasm for the truth.

With all the cards on the table -- that's key and where so many inquiries of this nature fall off the tracks -- the panel could decide what, if any, award should be made.

If Unger is truly innocent, he deserves compensation for all the time he spent behind bars. If doubt remains, we should have the right to not pay.


Robert Marshall is a retired Winnipeg police detective

Republished from the Winnipeg Free Press print edition October 8, 2011 J6

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