Lawsuit delayed is lawsuit denied Judge rules time has run out for legal action to move forward in decades-old wrongful conviction
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A Manitoba man’s $16 million lawsuit over his wrongful murder conviction has been dealt a legal setback after a judge ruled he took too long to pursue legal action against nearly all of the people he is suing.
“We haven’t given up,” Frank Ostrowski said Monday. “We are appealing the judge’s decision.”
Ostrowski, 72, was convicted in 1987 of orchestrating the drug-related shooting death of 22-year-old Robert Nieman and sentenced to life in prison with no chance of parole for 25 years.
In November 2018, nine years after he was released on bail pending a federal review of his case, the Manitoba Court of Appeal stayed Ostrowski’s conviction — ruling an undisclosed prosecution deal with police informant Matthew Lovelace in return for his testimony resulted in a miscarriage of justice.
Also not disclosed to the defence were notes and a report from Winnipeg Police Service Sgt. Neils Jacobson, who had a phone conversation with the informant a few hours before the slaying, during which Lovelace identified another man, not Nieman, as the target of a shooting.
In June 2020, Ostrowski filed a lawsuit against 12 defendants, including the Attorney General of Canada, retired Manitoba judge Judith Webster, now-retired defence lawyer Hymie Weinstein and former Winnipeg police chief Herb Stephen, alleging they “wilfully disregarded” Ostrowski’s constitutional right to make full answer and defence to the charges against him.
”We haven’t given up. We are appealing the judge’s decision.” – Frank Ostrowski
Last year, the defendants, minus Weinstein and his law firm Myers LLP, argued a motion the claim against them was not filed within the applicable two-year limitation period. In a decision dated Jan. 12, Manitoba Queen’s Bench Justice Shawn Greenberg agreed.
At issue was when the limitation period started to run. Ostrowski argued it started Nov. 27, 2018, when the Court of Appeal quashed his conviction. He filed his lawsuit 19 months later.
The defendants argued under the province’s Public Officers Act, Ostrowski had to have filed his claim within two years of his May 1987 conviction or, at the latest, by May 2006, two years after the Crown forwarded its case files to Ostrowski’s legal team at the Association in Defence of the Wrongfully Convicted (now Innocence Canada).
The defendants said Ostrowski could have sought leave to file his claim under the Limitations of Actions Act no later than November 2019, 12 months after the Manitoba Court of Appeal quashed his conviction, but he missed that deadline, as well.
“While the basis for the claim did not crystalize until November 2018, the possibility of a claim for damages would have been on the horizon long before then,” Greenberg said. “It would not be unfair to expect that (an application) could have been made in the year following the Court of Appeal decision.”
As Weinstein is not a public official, neither of the acts at the centre of the defendants’ motion applied to him.
In 1986, Weinstein was representing Lovelace on drug-trafficking charges when he made a deal with federal prosecutors to stay the charges if Lovelace testified against Ostrowski. At Ostrowski’s 2009 bail hearing, Weinstein testified he asked that no one tell Lovelace of the deal at the time, as it would “taint his evidence.”
At a hearing before the Manitoba Court of Appeal in 2017, Webster — a federal prosecutor in 1986 — testified she had “no memory” of the Ostrowski file, and said she did not know specific details of the deal with Lovelace.
“The federal Crowns, Weinstein and (Jake) Haasbeek (a city police officer and defendant involved in Lovelace’s initial arrest) ignored that the Lovelace deal was ‘subject to confirmation with the provincial Crown,’” Ostrowski alleges in his lawsuit. “The federal Crowns, Weinstein, and Haasbeek never advised or sought permission from the provincial Crowns about the Lovelace deal. They treated the Lovelace deal as if it was an unconditional three-party agreement.”
Someone once said a journalist is just a reporter in a good suit. Dean Pritchard doesn’t own a good suit. But he knows a good lawsuit.