Taxpayers on the hook for oversight prosecutions without oversight

I spent the day last week at the sentencing hearing for RCMP Cst. Kwesi Millington who was convicted of perjury on Feb. 20, 2015 arising from testimony given at the 2009 Braidwood Inquiry into the death at YVR of Polish traveller Robert Dziekanski. The Crown and the defence both made their cases with the Crown seeking a jail term between 24 and 36 months and defence requesting a conditional sentence of one year. Mr. Justice Bill Ehrcke reserved his decision until June 22, 2015.

Earlier this week I opined in this space that this whole process was a charade. Indeed, I was correct.  Having said that, by charade, I meant not meaningful given the likely appeal which would negate anything the judge pronounced pending appeal.

Ravi Hira, QC, the defence counsel, said at the start of his argument that he had already prepared the documents to file an appeal of the conviction, so the sentencing arguments made were really just going through the motions.

I realize that sentence pronouncements often have an effect in criminal appeals, in this case I think it would not be germane to the salient question of the difference between wrestling ‘to’ the floor or ‘on’ the floor. Because really, that’s what al of this is about.

Given the acquittal last week of Cst. Gerry Rundel and the reasons given for that judgement, it seems most likely that an appeal will succeed. The circuitous logic and inferences drawn in the absence of actual evidence by Ehrcke, it seems to me, should be easily argued in the Court of Appeal by any average lawyer and Hira is no average lawyer.

But what really struck me is how aggressive the Crown was being to try to get jail time for a young Mountie. Indeed, the Crown had three lawyers at bar. Leading for the Crown was Scott Fenton, a well-known Toronto lawyer who has been flown out for every appearance in not only the case against Millington, but also for Cst. Bill Bentley, who was acquitted last August and Cpl. Monty Robinson, who was found guilty in March. All four were tried separately when clearly, the case for the Crown emanated from the same fact pattern and from the same event.

Separating the four Mounties meant the prosecution was going to be much more expensive than trying them together. Made much more so when you consider bringing in high-priced help from Toronto and flying him back and forth for every appearance of three different trials.

As an aside, I asked Hira about this after the hearing. He smiled at me and said, “I really can’t say. It’s almost as though there aren’t any good lawyers in BC.” Good point.

The other two lawyers appearing for the Crown were Eric Gottardi and Tony Paisana of the law firm Peck and Company. This has apparently been the same basic format for all three trials with minor differences. Richard Peck himself handled the prosecution in the Rundel trial with Paisana sitting second chair and he sat second chair in the trial of Robinson.

Considering that the Criminal Justice Branch (CJB) hired Peck as the Special Prosecutor who decided on whether there was a case to be met at bar and actually approved the charges, It seems to me there is a bit of a problem.

A Special Prosecutor gets paid to review and decide whether or not to go forward with charges and then gets to keep the meter running on billable hours throughout the process? Why would any Special Prosecutor not approve charges in such a case and give it a run? But that is what the Crown Counsel Act allows without any oversight.

Oversight? Ah yes, isn’t that why we are in this quandary in the firs place?

I cast no aspersions on Peck. Indeed, he is also a QC with 40 years experience at bar. He works within the system as it is. But, for the taxpayer to have confidence in the system, in my opinion, this needs to change. CJB should have one counsel review the file and decide on whether charges should be laid, and if so, another counsel should have conduct of the prosecution. That seems much more fair not only to the taxpayer, but also to anyone under such scrutiny.

Especially when one knows this matter was considered in depth by another highly regarded criminal lawyer in Vancouver, Len Doust, QC.

On April 20, 2010, in an 11 page letter to Superintendent Wade Blizzard of the RCMP, Doust wrote:

“Based on our review of the materials with which you have provided us, the testimony of the Officers at the Inquiry does not likely amount to perjury under s. 131(1) of the Criminal Code. Nor does it violate the Code of Conduct. While there is some discord between the Officers’ testimony, their notes, their statements to investigators, the testimony of eyewitnesses and other evidence, we believe it is far from clear that this discord reflects any intention on the part of the Officers to mislead the Inquiry, or recklessness in that regard. It more likely reflects

1. The frailties of the human memory, considering particularly the extremely short timeline for the event at YVR about which the Officers testified;
2. The fact that the Officers’ initial recollections of the events at YVR was flawed, owing to the intense circumstances in which they made their observations and the impact of Mr. Dziekanskfi’s death on the Officers and / or to efforts by the Officers to maximize their justification for the use of force vis-a-vis Mr. Dziekanski; and
3. The Officers’ use, in accordance with their training, of specialized terms (e.g. “combative”) in their testimony without adequate explanation as to the meaning of those terms.”

Yet Peck came to a much different conclusion which brings us to where we are with four RCMP members charged – two convicted and two acquitted – and more appeals to come. And, I might add, with a great many tax dollars spent in the process.

Something needs to change.

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Leo Knight

@primetimecrime