Recent failures point to pattern of poor judgment,
unwillingness to learn from past mistakes: Lawyers
Feb 11, 2008 04:30 AM
RICHARD LAUTENS/TORONTO STAR FILE PHOTO
Julian Fantino, left, discusses the police corruption case at a news conference in 2004 during his tenure as police chief. John Neily, now assistant commissioner with the RCMP and head of the probe, looks on.
While the attorney general's ministry says it's appealing the staying of corruption charges against Toronto police officers because the judge got it wrong, lawyers familiar with the office believe the collapse of the case is a symptom of larger difficulties in the ministry's criminal law division, which handles most big prosecutions in Ontario.
"There are concerns, and have been for some time, about prosecutions being done out of the Crown Law Office," said Toronto lawyer Doug Hunt, who served as assistant deputy minister to Attorney General Ian Scott in the late 1980s and had a key role in creating the justice prosecutions unit.
A string of recent failures point to a pattern of poor judgment, an unwillingness to learn from past mistakes and a failure to heed warnings, numerous legal experts interviewed by the Star contend.
Others suggest the problems with big prosecutions may stem from a mismatch between the traditional expertise of the Crown law office – intellectually focused appeals – and the skills required in the rough-and-tumble world of criminal trials, especially when shrewd defence lawyers are on the other side.
The investigation into the six police officers spanned a decade, cost millions and drew in scores of other officers, saddled with the unpleasant task of scrutinizing their own.
More than two thousand criminal cases were re-examined, over 500,000 pages of evidence gathered and 29 criminal charges - including perjury and theft - were laid against six Toronto Police Service drug-squad officers. RCMP Assistant Commissioner John Neily, who led the task force, called it the "largest police corruption scandal known in Canadian history."
But when it came time to manoeuvre the case through the courts, the momentum evaporated. Justice Ian Nordheimer said as much when he stayed the charges Jan. 31 because of unreasonable delay. The Crown had no explanation for the "glacial" pace, he said.
Ministry spokesperson Brendan Crawley told the Star that any suggestion Crown attorneys on the case exercised poor judgment or missed warning signs are "baseless." The ministry has full confidence in its ability to manage and carry out all prosecutions, he said.
The Crown filed the appeal Friday. Essentially, the Attorney General contends the trial judge "seriously erred" by finding the Crown was responsible for much of the delay. The appeal also says the judge failed to take into consideration the complexity of the case.
Most major cases are prosecuted by lawyers in the ministry's criminal law branch. Cases involving police officers or other justice system employees are handled by the ministry's justice prosecutions unit.
The bread-and-butter work of the approximately 80 lawyers employed by the Crown Law office is criminal appeals, but big trials end up there, too, in part because they'd overwhelm a local Crown attorney's office but also because the lawyers who work there have traditionally been considered some of the province's brightest.
But recently, the office has witnessed the embarrassing demise of two other massive prosecutions – the tainted blood trial and another case involving six former tobacco executives accused of masterminding an alleged smuggling ring. The case collapsed last May, when a judge threw out the charges after a two-year preliminary hearing.
In the blood case, four doctors and an American pharmaceutical firm were acquitted last fall when an Ontario Superior Court judge ruled the Crown's own evidence exonerated the defendants. The defence hadn't called one shred of evidence.
It was "almost unprecedented," says Ottawa lawyer Michael Neville, who represented Dr. Wark Boucher in the case and believes the ruling calls into question the decision to charge and prosecute his client.
Despite 20 wasted months in court, there's been no obvious attempt by the attorney general to look into the debacle. Contrast that with the more active approach in Britain when one of the country's biggest fraud trials collapsed in 2005, 22 months into the case. The attorney general immediately launched an inquiry.
In the police corruption case, Attorney General Chris Bentley has launched an internal review of the prosecution, Premier Dalton McGuinty said Friday.
Asked on Friday about claims of systemic failings within the ministry, Bentley said there will "always be critics" and suggested some perspective is required.
Everyone in the justice system is "working incredibly hard" and "hundreds of thousands of cases" are prosecuted every year, he said. Some are won, some are lost.
But like the blood and tobacco trials, the corruption case against Toronto officers wasn't just any case. And in 2003, there were signs the ministry's justice prosecutions unit – the special branch in charge of bringing the police corruption case to trial – was stretched too thin.
A report for the province by George Adams, a former Superior Court judge, recommended the unit be "much better resourced" and restored to a position of greater respect within the ministry.
Adams had been hired to review the workings of the special investigations unit – which probes incidents of serious injury and death involving the police – but he also looked into the prosecutorial arm of the operation.
His 2003 findings echoed his conclusions from a 1998 report. Back then, Adams noted the justice prosecutions unit had experienced a drop both in number of lawyers and its status within the ministry.
Two more Crown counsel were added to the unit after Adams' 2003 report, bringing the total to 8. Then, as now, the ministry maintains the unit has enough prosecutors to handle the volume of cases. "Workload is not an issue," Crawley said.
But Adams suggested it wasn't just about numbers. The perception among some, including defence lawyers and minority groups, is that some Crown counsel attached to the unit aren't experienced enough to handle the difficult work of prosecuting police.
"While there has been no question regarding the dedication and commitment of the lawyers in the unit during the last three years, they are often perceived as hampered by a lack of experience," Adams wrote in his Feb. 26, 2003 report.
Frequent turnover may be contributing to the problem, he suggested; lawyers typically rotate through the unit in three-year stints. A search of legal and newspaper data bases shows that Milan Rupic, Susan Reid and Joan Barrett, who appeared in court on behalf of the Crown in the corruption case, were also assigned to other cases, including appeals, while the corruption case lurched along.
In 2005, Rupic, a veteran appeals specialist, was also serving as acting director of the Crown law office's criminal division.
Less than three weeks after Adams handed in his report, Neily wrote to the then-head of the justice prosecutions unit, James K. Stewart, expressing exasperation.
"The Toronto Police Service has and continues to put significant resources into this investigation, literally into the millions of dollars," Neily said in his March 17, 2003 letter. "Yet each time an issue is raised requiring a response from your office, I have to meet with a new attorney, bring them up to date on the complexities of this case and then await the next crisis. ..."
Senior officials in the attorney-general's ministry, including the attorney general, would have known what was happening, says NDP leader Howard Hampton, who was attorney general from 1990-93.
"The line that's being trotted out now, that `we saw nothing, we heard nothing, we knew nothing' – it's theatre of the absurd," he said.
Hampton said when he held the office, he was "kept up to speed on almost a daily basis" on the work of the justice prosecutions unit, then called the special prosecutions unit. He said it's unrealistic to think practice has changed since no civil servant would want to assume responsibility for decisions in such sensitive, politically charged cases.
At the same time, an attorney general would need to keep on top of developments in major cases in case he or she needed to step in and take action, said Hunt, who is now in private practice and often battles Crown lawyers in court. (He represented a tobacco company in the alleged smuggling case).
A prime example, said Hunt, was when Scott stayed charges against Dr. Henry Morgentaler in connection with his abortion clinic.
"We had regular – and by regular, I mean more than once a week – detailed briefings," he said, adding Scott recognized the public tends to assess the justice system by what unfolds in major prosecutions.
"The fires burning on a criminal case can easily go out of control," Hunt said. "They can attract a lot of attention. They can seriously affect governments."
With files from Robert Benzie