Winnipeg Free Press - PRINT EDITION
Posted: 02/14/2013 1:00 AM
If there ever was a case before the justice system that demanded flawless administration, it is this one.
Last May, final arguments were heard in a case against former East St. Paul police chief Harry Bakema. He is charged with perjury, breach of trust and obstruction of justice for his part in the botched investigation of the death of Crystal Taman, who in 2005 was struck by a car driven by an off-duty Winnipeg police officer, Derek Harvey-Zenk, following an all-night drinking party. Irregularities with the investigation prompted the Crown attorney in the case to offer Harvey-Zenk a deal: He pleaded guilty to reduced charges in exchange for a conditional sentence. The case sparked provincewide howls of protest and, subsequently, a judicial inquiry.
The Bakema prosecution was supposed to be the last, sorry chapter in the lamentable story of Taman's death and the subsequent erosion of public confidence in the justice system. You would think that, given the facts and lingering public concern about the case, the justice system would do everything possible to ensure the Bakema decision is delivered in a timely, professional manner. Unfortunately, that is not what has happened.
Provincial court Justice Kelly Moar, who heard the case alone without a jury, has yet to render his decision, now nearly 10 months after final arguments. It is hardly a stretch to say that what is happening now is exactly what the public, and the guardians of the justice system, did not want to happen with this case.
There are no legislated deadlines for how quickly a judge must render a decision. However, more than 30 years ago, the Canadian Judicial Council identified six months as a reasonable amount of time for any accused person to wait for a decision. That half-year guideline has been used effectively in complaints against judges, motions to dismiss and appeals of criminal convictions.
In some provinces, failure to meet the six-month target has meant disciplinary action for judges. In Quebec last month, the chief justice of the Court of Queen's Bench prohibited a judge from taking on new cases until she had cleared a backlog of cases. A subsequent CBC television story determined that in more than half of this judge's cases, she took more than six months to render a decision. Although the penalty was only reduced duties, the public rebuke by the chief justice and subsequent media reports were punishment, and should send a clear message to other judges about how serious this matter is taken.
In the case of Judge Moar, this is not the first time he has been involved in a controversy based on an inability to render a timely decision. In 2011, drunk-driving charges against a Winnipeg man were dismissed after Moar took 21 months to rule on an evidentiary motion. In a Court of Queen's Bench decision to dismiss the charges, Justice Albert Clearwater wrote the delay in this case was "a serious breach of the constitutional rights of both this accused and society generally."
Given the generally accepted six-month deadline, and the incendiary nature of this case, it is quite frankly tough to comprehend how Moar could have got this far behind. The courts do not comment publicly about the pace at which cases are decided, so there is no opportunity to have questions asked and answered. If there is some pressing ancillary or personal issue affecting Moar's performance, it has not been picked up by the many purveyors of gossip who operate within the legal profession. It appears to the outside world that this is tardiness, pure and simple.
Could provincial court Chief Judge Kenneth Champagne intervene to move things along? It is always a tricky thing for anyone, including a chief justice, to do anything that could be seen as meddling with another judge's duties. And yet, tradition suggests chief justices can and do intervene if the integrity of the justice system is at stake. There is no doubt the system itself is due to be judged, again, for this misstep. If there ever was a time when an intervention was warranted, this is likely it.
The administration of justice is a tricky matter, of that there is no doubt. At first blush, it seems like an impossible task. Effective justice requires a balancing of the rights of the accused and the interests of the broader public in a safe and ordered society.
And yet, there is a place good lawyers and judges find between due process and undue, unexplained delays that serve all interests. This is a place the provincial court system must find in this matter.
This is a case that cries out for effective, efficient justice. It is the final bit of business in a particularly tragic and tawdry matter. It must be completed in a timely manner, so those directly involved, and those of us watching from the sidelines, can be put out of our collective misery.
Republished from the Winnipeg Free Press print edition February 14, 2013 A4
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