Winnipeg Free Press - PRINT EDITION

Wrongful arrest needs review, safeguard

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In provincial court this week, a man named Robert Maier, who had been charged last March with manslaughter, which is a form of homicide, had his charges dropped when it was discovered through lab toxicology reports the cause of death was actually an overdose of drugs and alcohol. Maier had in fact assaulted the victim, but the assault wasn't the cause of death.

Yet he was arrested at the end of February and charged with manslaughter.

In a news release, police referred to an autopsy report they claimed revealed the victim had died from injuries sustained as the result of an assault.

As it turns out, it wasn't until March 5, after the police had arrested Maier and declared the cause of death, that the pathologist indicated a final determination of cause of death required toxicology testing and results.

In other words, the pathologist wasn't sure what caused the death and needed further testing.

Maier spent eight months in jail waiting for these results. Defence lawyer Martin Glazer had made numerous requests for the complete autopsy and toxicology results.

A pretrial conference was held in June, during which the judge directed disclosure of the forensic reports be made no later than Aug. 31, 2013. Crown attorney Chris Vanderhooft joined with Glazer in asking for the complete reports but they weren't received until Sept. 30, eight months after the arrest and after the expiry of the court-imposed disclosure deadline.

The delay was attributed to pressures in the system and the complexity of the testing.

This has to be completely unacceptable. Hailing the fact that a potential wrongful conviction was avoided is fine, but it detracts from the focus that should be had on systemic safeguards that exist to protect our individual liberties at the front end of the process.

This was a wrongful arrest and detention, at least insofar as the homicide charge is concerned.

We can all appreciate labs might be backed up and tests might be complex. But the law does not operate on the basis of locking people up first and then investigating later, nor should it.

Use of the criminal law is the harshest instrument of state power. It gives the state the right to take away our freedom, and so it should where there is compelling evidence to do so. We all want police and then the court system to identify and prosecute people who commit crimes.

In the Maier case, this didn't happen, and we are entitled to know why. Why did police tell the public an autopsy report led them to the conclusion they announced when the actual lab reporting was inconclusive until some eight months later? Why was Maier charged with causing a death police knew hadn't yet been determined? Why did taxpayers have to pay to house Maier in custody for all that time? Was the Crown aware of the fact police had charged someone when they didn't actually know it was in fact a homicide? What else don't we know about this case that might be relevant?

If we are to have respect for the law, then those tasked with enforcing it must be the people we most trust to follow the law.

While the Criminal Code falls within federal jurisdiction, administration of its provisions is left to the provinces. Justice Minister Andrew Swan should study the Maier case very seriously to determine whether any additional procedural safeguards are needed within the system to prevent this from happening again.

Locking people up and investigating later is undemocratic and flies in the face of any notion of individual liberty in Canada. That makes what happened here serious enough for the minister or his deputies to take an interest.

David Asper is a Winnipeg lawyer and businessman.

Republished from the Winnipeg Free Press print edition October 12, 2013 A17

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