Monday, July 07, 2014

Crowns hold citizens accountable but how do citizens hold Crowns accountable?

Good Day Readers:

There is something very troublesome from a prosecutorial perspective about this next case. While Mayor of Leaf Rapids (Manitoba), Geraldine Cockerill was subsequently charged by the RCMP in December of 2012 with no less than 28 criminal offences everything from uttering a forged document to mail theft and beyond while she was the town's Post Mistress.

So far so good. However, quite recently Prosecutor David Gray abandoned the prosecution merely stating it was "... for a fairly technical reason ... ." For goodness sakes is that the best he can do? After presumably costing Ms Cockerill significant money in legal fees, leaving her reputation in tatters not to mention the stress suffered, that's it? Isn't she, as well as, the taxpaying public who pay for the Crown's Office owed a more complete explanation? "... for a fairly technical reason ..."  sounds like lawyerspeak for the great unwashed taxpayer masses are too stupid to understand. Ha!

Subsequently she lost her job with Canada Post and the pension and benefits that went with it. Does she have the resources to counter sue their asses off? Probably not so what's she supposed to do? Will she be able to find a lawyer willing to take her case on a contingency or pro bono basis? Again probably not.

Back in February 2011 Provincial "All Star" Judge Brian Corrin was briefly arrested and charged by Winnipeg Police for allegedly uttering threats and an assault against his own mother if you can believe it!
"Judge All Star"

At the 3-4 hearings that ensued "All Star" was represented by one of Winnipeg's more expensive criminal lawyers Richard Wolson. You may recall him as the solicitor who acted on behalf of the public interest (code for taxpayers) during the 2008 Oliphant Commission investigating those "Mulroneydollar" evnelopes containing over $200,000 worth of cash. Long story short, $8,000,000 later no one went to jail and the lawyers got rich, however, not all was lost. For aficionado of soap opera television it made for some amusing matinee television albeit quite expensive..
The Crown brought in an external Crown (Toronto) who eventually got up to say, he was dropping all charges because of conflicting DNA evidence and conflicting statements by those interviewed by the police. A no point did the presiding judge say, "Oh please, tell us more." He accepted the Crown's position without question.

Still thirsty for more information, CyberSmokeBlog contacted the Crown's Office trying to find out additional detail but was told that was all the information that would be released. Like in the Cockerill case is sounds as though the Crown is obliged to tell the public as little or as much as it wishes accountable to no one. Certainly sounds like it sets the ground rules for public disclosure.

The Winnipeg Free Press article was written by Douglas J. Johnston who practices with Winnipeg's Wilder Wilder & Langtry in corporate and commercial law.
Douglas J. Johnston

Sincerely,
Clare L. Pieuk
Stigma often lingers for innocent accused

By Douglas J. Johnston
Saturday, July 5, 2014

Last month in Thompson provincial court the Crown quietly dropped charges of fraud, forgery, uttering a forged document and mail theft against the mayor of Leaf Rapids. Crown attorney David Gray directed a stay of proceedings on all 28 offences alleged to have been committed by Geraldine Cockerill, who is also Leaf Rapids' former Canada Post postmaster.

Cockerill maintains she was wrongly accused, and ruined in the result. "I lost everything being falsely accused of these charges."

Canada Post fired her when the charges surfaced. She also lost her pension and benefits.

The Crown offered no explanation for abandoning the prosecution, saying only charges were dropped "for a fairly technical reason."

Her experience isn't singular. As Supreme Court of Canada Justice Michael Moldaver once put it: "Sometimes the person most victimized by the criminal process is the accused."

The horrendous impact the laying of a criminal charge can have on an innocent person's life plays out routinely in the justice system, though with a lot less notoriety than the dramatic stories of the wrongly convicted.

The names David Milgaard, Donald Marshall, Jr., Thomas Sophonow, Guy Paul Morin, James Driskell and Steven Truscott are synonymous with miscarriage of justice -- but after trial and conviction. There's no comparable celebrity roster of those charged, branded criminal and dragged through the system, only to see the Crown ultimately abandon their prosecution.

The withdrawal of a criminal charge is, at first blush, seemingly great for an accused -- particularly where the charge is dropped before a trial begins.

However, a stay is usually accompanied by no, or minimal, explanation.

Occasionally a Crown attorney indicates why critical evidence isn't available, or isn't admissible in a court of law, in dropping charges. But disclosure is the exception. Rarer yet is a statement from the prosecutor that amounts to exonerating an accused.

At least in part for these reasons, the stigma of criminal accusation sometimes lingers. And lingers for a long time.

Professionals can have careers and reputations destroyed by mere allegations of workplace criminal conduct. Those whose vocations involve dealing with children are particularly vulnerable. Allegations of physical abuse or sexual misconduct, particularly if it involves a minor, are often ruinous.

And where police issue press releases announcing the laying of charges, the accusations receive widespread conventional media coverage and also, nowadays, a great deal of play online and via social media. Much of the latter is frequently neither fair nor fully informed.

That's why sometimes an innocent accused, following the staying of a charge, simply moves to a province or country where his or her name and face aren't known.

Moreover, as with Cockerill's case, an accusation can lead to job loss and financial ruin. Legal costs to fight charges can be staggering. Defending yourself against multiple charges such as the mayor faced can deplete life savings or involve a debt load that may never be retired.

Cockerill says she's considering a civil suit against Canada Post and the Province of Manitoba for their bungled handling of the allegations against her. She maintains she was "falsely accused by a co-worker who was after my job and wanted me fired."

Once upon a time suing the Crown or a Crown agency like Canada Post was impossible. The Crown used to enjoy an immunity from prosecution -- you couldn't sue the state, its agents or officials. However, it's now possible to sue the government. But legally, it's still a tough row to hoe.

In the absence of malice, or gross negligence in the crime investigation, police aren't generally liable. Crown prosecutors, absent definitive proof of malice, can't be held civilly liable for prosecuting an innocent accused.
Still, the fallibility of the criminal justice system, and the disastrous consequences of that fallibility, has made Canadian courts increasingly open to compensating innocent accused. There have been several cases over the last decade where courts have found prosecutions, in the scathing words of one Alberta judge, "cloaked with malice," and made huge damage awards to the wrongfully accused.

Leaf Rapids' mayor wasn't a victim of crime in the classic sense. But she has the option of trying to prove victimization of a different sort in our civil courts.
It will be interesting to see if she picks up that option.

Douglas J. Johnston is a Winnipeg lawyer.

Republished from the Winnipeg Free Press print edition July 5, 2014 Page A13.

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