You can call us stupid but .....

Good Day Readers:

We attended Blackie’s Tuesday's meeting before a 3-person panel at The Law Society of Manitoba offices to hear his motion for the recusal of LSM appointed prosecutor David M. Skwark (FillmoreRiley). The 3-page, 3-count Citation was posted on this site January 14, 2011 entitled, “The Citation!”

In adhering to The Legal Profession Act, the two complainants cannot be identified until after a finding of professional misconduct – that is, if there is one. Therefore, at least for now they must remain as “Mr. Y” (What a guy that Mr. Y!) a lawyer and “The Bully” a non-lawyer.

The session began with Blackie making his arguments after which he was questioned by the panel. Then it was Law Society Senior General Counsel Kristin C. Dangerfield’s turn to present.

The crux of Ms Dangerfield’s argument seemed to be the procedures followed by The Society of Manitoba for defining the prosecutorial function reduce that individual to being merely a purveyor of facts for a disciplinary committee. As such it places them above real or apparent bias given they do not enter into the decision-making process.

She also took great pains to detail the process by which the LSM vets and selects its prosecutors. After each presentation the panel asked questions. Blackie and Ms Danderfield were then allowed to make their final arguments.

In the end Blackie’s motion was dismissed.

Our Analysis

The panel recessed for about 45-minutes after which it returned with a decision. In opening comments it disagreed with the notion prosecutorial sanctity exists explicitly rejecting the view a prosecutor could never be removed for real or apparent apprehension of bias. Further, it suggested the LSM should put in place better mechanisms at the point of prosecutorial selection to monitor and screen for potential bias.

It’s fortunate we don’t have dentures because shortly into The Society’s presentation we almost choked at which time they would have popped out - that or we would have become violently ill.

Using basic Cartesian logic 101 no one walks amongst us without some prejudices and biases. Whether we choose to recognize them is another matter. As our wise grade 10 English teacher once told his class, “Remove all the prejudices from a person and there isn’t much left.”

To suggest prosecutors are somehow above this is off the charts. If the Law Society is to be believed, why do wrongful convictions occur in Canada? Could it possibly be the result of some combination of the following factors: overly zealous prosecutors with biases who make bad decisions; defendants inadequately represented; and, yes, even judges sometimes make mistakes.

We heard no compelling arguments whatsoever to suggest the current selection system as employed by the LSM sufficiently and effectively monitors this activity. At times it almost sounded more like Russian roulette using a rolodex. Had it been otherwise Blackie would never have been afforded the opportunity of bringing forward his motion in the first place.

Was The Society’s decision a total defeat for Blackie? Not in the least this case is far from over. When he receives his written decision we hope he sends a copy to CanLii for entry into its data base. CanLii is a legal specific online search engine lawyers and legal scholars frequently use to research cases and seek precedents. We believe Blackie’s efforts represent the first attempt to judicially define the parameters surrounding the selection of prosecutors. God knows its long overdue!

Disclaimer: Our comments and analysis are based on notes taken during the hearing combined with our recollection of the discussion. Since a court reporter was present, to ensure accuracy we requested a transcript but were denied by the Chair Ms Jennifer Cooper.

Sincerely,
Clare L. Pieuk