Defence accuses Crown of ‘criminal act’ in domestic-abuse case

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This article was published 06/06/2016 (3378 days ago), so information in it may no longer be current.

The Manitoba Prosecution Service has been accused of trying to extort an accused domestic abuser into pleading guilty — and then causing his distraught girlfriend to take her own life months later.

The stunning allegations were made in a Winnipeg courtroom on Monday by Ian Histed, a veteran defence lawyer who is representing the man now on trial despite the subsequent suicide of the alleged victim.

Histed is seeking to have the case thrown out of court for what he says is the worst Crown conduct he’s ever seen in his career.

“There was a criminal act by the Crown attorney, extortion, that led to this poor woman’s death,” said Histed. “I see a lot of cases with abuse of process. I have not seen anything like this. There has never been a case as serious or blatant as this.”

Heather Leonoff, the head of Manitoba’s constitutional law branch, took issue with Histed’s claims during a tense court hearing before Queen’s Bench Justice Joan McKelvey.

“This is histrionic and over-the-top in the extreme,” said Leonoff. “There’s a tragedy here. Nobody disputes that. In the end, none of us can be responsible.”

The case involves Brett Johnston, who was charged with assault causing bodily harm after his girlfriend of two years suffered several injuries during an April 2014 incident at their home. These included a dislocated jaw, broken nose and torn ear. He was released on bail with conditions to have no contact with the woman, who he’d been dating and living with for nearly two years. He has denied any wrongdoing.

According to Histed, a provincial Crown attorney sent him an email in September 2014 and indicated she would accept a plea bargain to the existing charge of assault causing bodily harm. However, she indicated that refusing to admit responsibility could result in her authorizing a more serious charge of aggravated assault against Johnston before taking him to trial.

“That’s extortion. That’s a direct threat. Either he pleads guilty to assault causing bodily harm, or she’s going to have an aggravated assault charge laid,” Histed said Monday. He noted the maximum penalty for aggravated assault is 14 years, compared with 10 years for assault causing bodily harm.

Leonoff said there was nothing unsavoury about the offer made to Histed.

“It’s not a threat. It’s professional judgment based on evidence,” she said. “This was legitimate plea bargaining. It’s similar to every plea bargaining email that goes out of this office day in and day out.”

Leonoff said extortion would involve the Crown threatening to charge an accused person despite having no evidence. In this case, there was medical documentation that could have supported a potential aggravated assault case.

Histed said Monday the same prosecutor also warned Histed in the fall of 2014 that his client could also face a possible obstruction of justice charge, as his girlfriend had been repeatedly going to victim services telling them she wanted the charge dropped and to resume contact with Johnston.

Histed said he responded by telling the Crown his client had not influenced the woman in any way and was actually quite concerned — she had been expressing suicidal thoughts and there were fears she would act on them. Histed asked the Crown to drop the case and allow Johnston to resume a relationship with the woman, as she clearly wanted. The Crown refused. Histed said the woman then ceased all contact with victim services and the Crown. She ended her life weeks later.

“(The prosecutor) wasn’t just threatening the accused. She was threatening the complainant,” Histed said Monday. “This cut her off from a possible source of support. Ultimately, as we know, she took her own life. It’s not as if the Crown was not on notice. I told them this was imminent.”

Leonoff said the Crown did all it could in the case, including leaving voice mail messages with the woman that weren’t returned. They had lined her up with proper supports, and there had been in-patient treatment for her mental health. Ultimately, doctors released her on the belief “she was doing well,” said Leonoff. At no time was the woman discouraged from making her views about the criminal case known.

“Nobody told her she couldn’t come and make any suggestions,” said Leonoff. The obstruction of justice threat was only meant for Johnston if evidence turned up that he was causing the woman to do something “not of her own free will,” she said.

The original prosecutor on the case who sent the email to Histed was removed from the file, although no explanation was provided to the court on Monday. As well, an upgraded aggravated assault charge was never laid.

Histed now wants the judge to enter a judicial stay on the assault causing bodily harm case based on the Crown’s alleged misconduct. In the alternative, he has also filed a motion seeking to have it dismissed because of the death of the alleged victim. He said it’s unfair to his client that the woman can’t be cross-examined in court, with the Crown instead relying on her previous statement to police.

McKelvey has reserved her decision on the stay of proceeding motions until the end of the trial later this week.

On Monday afternoon, the alleged victim’s best friend told court how she found the woman “covered in blood” following an argument with Johnston after they had all gone out to a bar that night. The dispute was triggered after he left the bar and went home without telling his girlfriend.

“They were yelling at each other. Then I heard some loud thumping noises. She sounded very scared,” said Emma Miguez of what she heard as she stood in the doorway of the home while her friend and Johnston argued upstairs.

www.mikeoncrime.com