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The trial for a Winnipeg Police Service officer accused of impaired driving has been delayed while the court arranges for a judge from outside the city to hear the case.
The case against Leslie McRae — the fifth city police officer to face drunk-driving charges in court this year — was flagged as needing an out-of-jurisdiction judge, but that didn't happen before the trial was set to begin Thursday.
Instead, the case landed in front of provincial court associate chief Judge John Guy, who agreed with Crown and defence lawyers a judge from outside Winnipeg should hear the case because it involves a city police officer. Brandon Crown prosecutor Brett Rach said he believed a judge from outside Winnipeg had been requested, but those arrangements weren't made.
Michael Hawley, 50, an eight-year member of the Winnipeg Police Service, pleaded guilty to impaired driving July 20, and received a curative discharge. He admitted he was impaired when he crashed his truck into a fence in his back lane on Nov. 26, 2017. He was found slumped over behind the wheel, with the keys still in the ignition. The engine wasn't running. Court was told Hawley is undergoing treatment for alcoholism.
Andrew Tighe, who has been a WPS officer for more than 23 years, was acquitted of impaired driving Aug. 9, after provincial court Judge Robert Heinrichs ruled there was reasonable doubt as to whether he'd been driving drunk in Elmwood on June 3, 2017. The officer who arrested him testified she had "no doubt" he was impaired, but she hadn't seen him drive. Tighe's truck was stalled in the road when his colleagues found him.
Jason Garrett pleaded guilty to impaired driving Sept. 13, and will now have a criminal record, in addition to a $1,300 fine and a one-year driving prohibition. The 29-year member of the WPS admitted he was driving drunk on Highway 6 in the RM of Woodlands on Feb. 18, 2017.
Justin Holz was a 34-year-old, eight-year member of WPS when he was charged with several criminal offences, including dangerous driving causing death, impaired driving causing death and failing to stop at the scene of an accident in connection to the Oct. 10, 2017, hit-and-run that killed 23-year-old Cody Severight. Holz no longer works for the police service. A four-day preliminary inquiry for Holz is set to begin March 4, 2019.
Leslie McRae, a 10-year member of the WPS, was arrested by RCMP on Nov. 20, 2017, and charged with refusing to provide a breath sample and having care and control of a motor vehicle while impaired. The refusal charge was stayed Thursday, and a new trial date hasn't yet been set for the impaired charge.
The trial was expected to be brief, with one Crown witness — an RCMP officer — set to testify. Now, it will be delayed until a new trial date is set. Rach said the Crown will have to "eat" the delay in the case.
Guy said the court will typically get advance notice when a judge from outside the city has been requested.
"It’s too bad, because we have witnesses here, I take it, and things like that. But I think the policy is a wise one in the sense of whether the judge knows the people (involved in the case) or anything like that, and it’s one that we usually have done, and I’m sorry that for whatever miscommunication, whatever happened, that that hasn’t taken place so this matter could proceed appropriately today as scheduled," Guy said in court Thursday.
McRae, 42, will plead not guilty to having care and control of a motor vehicle while impaired.
He was arrested by Headingley RCMP on Nov. 20, 2017, after police saw a driver parked on the shoulder of the Trans-Canada Highway just west of Headingley.
McRae was also charged with refusing to provide a breath sample, but Rach stayed that charge Thursday, telling Guy it wouldn't have stood up in court if the defence had decided to launch a legal motion arguing loss of evidence.
When the Free Press asked about the decision to stay the charge, Rach said video surveillance footage from the "breath tech" room, where the sample would have been taken, was "not preserved." He said video surveillance is not available in every case involving an allegation of refusing to provide a breath sample, but in this case it was, and the prosecution doesn’t have it.
Other recent cases involving city police officers accused of impaired driving offences haven’t triggered requests for judges from outside the city or the province. Three WPS officers had their impaired-driving allegations resolved in Winnipeg this summer. All of those cases were handled by Brandon Crown attorneys and Winnipeg judges.
There is no written policy on when to bring in an outside judge, a spokeswoman for Manitoba courts said Thursday, but the issue is handled on a case-by-case basis to ensure judicial impartiality.
"Depending on the circumstances of the case, the matter could be approached in a variety of ways. It’s possible that a judge from the same judicial centre who has had no prior involvement with the parties could hear the matter or that a judge from a different judicial centre should," the spokeswoman wrote in an emailed statement.
"It’s also possible that no reassignment is required or that bringing in a judge from another province is needed. Ultimately, it comes down to the assessment of whether a reasonably informed person would remain confident that the matter is being decided fairly and this is determined by the chief judge."
Manitoba Justice’s prosecutions policy states independent counsel should be considered when a criminal charge is laid against someone with a direct connection to the justice system, including a police officer.
A justice department spokeswoman said Thursday that could include bringing in a Crown attorney from a different office within Manitoba, a Crown from out of province, or independent practitioners from in or outside Manitoba.
Katie May reports on courts, crime and justice for the Free Press.