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This article was published 17/9/2014 (1011 days ago), so information in it may no longer be current.
He was the victim of a serious miscarriage of justice that saw him spend more than five years wrongly accused of murder.
But a Manitoba father has lost his bid to have the province pay for more than $100,000 in legal fees spent fighting to clear his name.
Queen's Bench Justice Deborah McCawley ruled earlier this month this case doesn't meet the criteria for such a rare legal finding because there is no evidence the Crown was guilty of an "abuse of process." Rather, she found prosecutors had honest intentions despite proceeding with an obviously flawed case that never should have gone to trial.
Still, the judge had strong words for those involved in the controversial case.
'(The accused) is not getting off on a technicality. The Crown has failed to provide any evidence on which a reasonable jury, properly instructed, could convict'
"In many respects, the (accused) and his family were let down by the system," McCawley wrote in a decision obtained by the Free Press. "There is no doubt that, from time to time, innocent people will be charged with criminal offences. However, it behooves us all to bear in mind the serious and lifelong implications of when that occurs."
The man, who lives in northern Manitoba, was charged with second-degree murder in the death of his 14-month-old foster son in November 2008. He found the developmentally delayed boy unresponsive in his crib and covered with vomit soon after giving him a bath and putting him to bed with a warm bottle. He called 911 and sought help, but despite efforts to revive the boy, he died the next day in hospital in Thompson.
A court-ordered ban prevents his name from being published.
The father was finally cleared last January when evidence emerged at trial that clearly pointed to his innocence and a flawed police and Crown investigation.
"While I do not single out any one individual, it should have been apparent at some point long before now that this charge could not be sustained," McCawley said at the time in granting the defence request for an acquittal based on a "no-evidence" motion.
'While I do not single out any one individual, it should have been apparent at some point long before now that this charge could not be sustained'
"It is hard not to think that this is a case where a charge should not have been laid or, once laid, should not have been proceeded with in light of the Crown's own evidence," the judge continued. "(The accused) is not getting off on a technicality. The Crown has failed to provide any evidence on which a reasonable jury, properly instructed, could convict."
The Crown had alleged the man had "exclusive opportunity" to cause the traumatic brain injury that led to the boy's death when he was the only adult at home. But the Crown's own medical expert testified it was "impossible" for the child to have sustained the injuries in the two-hour time frame in which it was said they happened.
As well, there was evidence showing the child had been accidentally injured by others in the days before he died, including by a babysitter RCMP arrested but never charged.
During arguments earlier this year, the Crown defended its decision to prosecute and said there was a valid public interest in going to trial even in such a circumstantial case. Lawyer Heather Leonoff said they shouldn't be punished for exercising their judicial discretion.
But McCawley said in her decision this month the matter never should have got this far.
"That the Crown's case was problematic should have been obvious, if not well before trial, then at least during the tendering of the Crown's evidence," she wrote. "Although how the evidence will eventually come out is never certain, and the Crown is entitled to adopt a strategy and change it as the trial progresses, one would have expected the Crown to be continuously mindful of its responsibility to assess its strategy against a reasonable prospect of conviction."
During the trial, McCawley offered prosecutors chances to reassess their case based on the evidence, but they elected to "forge ahead." The Crown even changed its theory after closing its case, advancing for the first time the possibility the child had been a victim of "shaken baby syndrome."
That tactic -- which wasn't supported by any evidence -- drew the ire of both the judge and defence lawyer Saul Simmonds, who accused the Crown of "grasping for whisps of smoke when a man's life is at risk."
McCawley also criticized the fact it took five years to get the case to trial. Although the father was out on bail, he was unable to see his three other children during that time and his wife became "a single parent."
"Additionally, (the father) and his family suffered a huge financial burden to fund his defence. The court was advised that he used his entire life savings, spending over $100,000 until he became eligible for legal aid, which paid for the rest," said McCawley. "As well, it is difficult to imagine what it is like to have to endure an experience such as this, and then start to rebuild one's life and relationships, which before had seemed so safe."
With his motion to recoup his legal fees having failed, the father still has the option of launching civil action against the province just as others who've been victimized by wrongful prosecutions have done in the past. To date, he has taken no such action.