CANADA

Justice under fire

Nova Scotia’s prosecutors’ office attracts controversy

JOHN DeMONT December 21 1998
CANADA

Justice under fire

Nova Scotia’s prosecutors’ office attracts controversy

JOHN DeMONT December 21 1998

Justice under fire

CANADA

Nova Scotia’s prosecutors’ office attracts controversy

JOHN DeMONT

There was no Perry Mason-moment as the prosecution closed its case in the Gerald Regan sex trial last week—just the long, slow grind of procedural wrangling in a Halifax courtroom. A juror was excused—leaving just 10 to hear the remainder of the trial after another left earlier because of illness—Crown evidence was disqualified and testimony declared inadmissible as the trial limped through its sixth week. In the end, Crown prosecutors Adrian Reid and Denise Smith managed to put two witnesses—the 16th and 17th of the case—into the witness box. A 61-year-old woman recalled how Regan, the 70-year-old former premier of Nova Scotia now on trial on eight charges of rape, attempted rape, indecent assault and unlawful confinement, used to hang around a Windsor, N.S., skating rink when he was a young sportscaster and lawyer in the 1950s, looking for young girls to drive home. Using an old aerial map, RCMP Sgt. Jerry Pretty pointed out the site of an old gravel pit that could have been the place where Regan allegedly raped a 14-year-old girl in 1956. Then, the prosecution rested—leaving the floor to Edward Greenspan, Regan’s flamboyant defence lawyer.

It was vintage Greenspan. Opening his defence, he told the jury that Regan had insisted on waiving his right to remain silent and would take the witness stand “to tell you, in his own words and out of his own mouth, that he did not commit these crimes, that he is innocent.” With Greenspan also planning to call Regan’s wife of 42 years, Carole, and only a few others to the witness stand, a verdict could come this week. Conviction on the rape charge could mean jail—although Regan is now probably too old for a lengthy prison term. But watching him walk free might be too much for Nova Scotians who have been rivetted by the graphic allegations against him $ since the trial began on Nov. 2. If that happens, some | fingers will almost certainly be pointed at the province’s beleaguered Public Prosecutions Ser1 vice—the Crown prosecutors’ office—an institution | in which many residents, it seems, have already lost g faith. ‘We are,” admits Martin Herschorn, the acting

PPS director, “on the hot seat a lot these days.”

The Regan trial, after all, has been a bumpy one for the prosecution, beginning last April with the decision by Michael MacDonald, associate chief justice of Nova Scotia’s Supreme Court, to throw out nine counts of indecent assault against the ex-politician because, he ruled, the Crown had lost its objectivity by becoming too involved in the RCMP investigation by extensively interviewing witnesses before charges were laid. And throughout the preliminary hear-

ings, Greenspan argued that his client was being railroaded by RCMP investigators and a Crown prosecutors’ office determined to nail his client at any cost—a theme he is sure to return to as he mounts his defence this week.

Lately, the Crown has become accustomed to taking it on the chin for its handling of high-profile cases. The PPS was publicly vilified last month after the provincial Supreme Court upheld a lower court

decision throwing out first-degree murder charges against Dr. Nancy Morrison (for allegedly giving a lethal injection to a dying cancer patient in 1996). Last week, the Crown finally announced it was closing the case—after criticism that it had been overzealous in its determination to convict Morrison. Another case in point: the June 30 decision to withdraw criminal charges against two managers whom many blame for the 1992 underground explosion at the Westray mine in Plymouth, which killed 26 miners. “I can understand that people feel strongly about these decisions,” says Herschorn. “But they reflect the proper application of prosecutorial principles.”

Not everyone is so sure that a willingness to make unpopular decisions is all that is plaguing the PPS. Last June, after all, the Nova Scotia government was worried enough about the office’s performance to appoint Fred Kaufman—the Quebec judge who unravelled the wrongful murder conviction of Ontario’s Guy Paul Morin—to conduct an independent review to ensure that the department is properly managed and accountable to the public for its decisions. “My feeling is that improvements can be made,” is all Kaufman, who expects to file his report some time next year, would tell Maclean’s last week.

Nova Scotia’s public prosecutions department has been under the microscope before. A royal commission, appointed in 1986 to examine why Donald Marshall Jr. was jailed in 1971 for a murder he did not commit, blamed his fate on a criminal justice system rife with racism, incompetence and overt political favouritism. In their 1990 report, the three commissioners concluded that Nova Scotia had nothing less than a “two-tier system of justice” that kept the rich and well connected out of jail while ignoring the interests of the powerless.

The commission had a radical recommendation for solving the problem: remove direct, day-to-day control over the prosecution arm from the attorney general’s office, and give Crown prosecutors the freedom to make their own decisions without worrying who they might upset. In theory, Crown attorneys in all provinces are independent. But Nova Scotia became the only jurisdiction to enshrine those guarantees in a legal statute with the Public Prosecutions Act, passed on Sept. 1, 1990. Under the new law, Nova Scotia’s attorney general, who remained accountable for the new-

ly named PPS in the legislature, could still order the department to do his bidding. But instead of working behind closed doors, the attorney general’s office now had to publicize its orders, making overt meddling difficult.

Once unchained, however, the PPS became a magnet for controversy. John Pearson, the PPS’s first director, was a veteran of the Ontario attorney general’s department, where he had been a Crown prosecutor. But he chose to try several high-profile cases himself, and as a result, each time he lost in court the damage to his office’s reputation was compounded. That is £ what happened with the 1991 1 prosecution of David Nantes, S a minister in the Conservative government of former premier John Buchanan. Charged with releasing confidential health information about a former senior civil servant who had accused Buchanan of corruption, Nantes was acquitted.

The PPS also ended up with egg on its face in 1991 in the case of Roland Thornhill, another former Tory cabinet minister. After a provincial court judge dismissed 14 of 17 fraud-related charges against him, the Crown had to withdraw the remaining three charges due to lack of evidence. And in early 1993, the criticism grew even louder when Pearson announced that he had stayed 52 charges under the Occupational Health and Safety Act against Curragh Resources, owner of the Westray coal mine, claiming they might interfere with looming criminal charges.

Amid all the controversy, Pearson left his post in August, 1994, to return to the Ontario attorney general’s department, where he is now director of Crown operations. And when John Savage’s Liberals—who had been extremely critical of the PPS while in opposition—took power, they immediately ordered an inquiry into the department. That resulted in a 1994 report chronicling a demoralized, overburdened, underpaid workforce, struggling with stingy government funding. But Herschorn, who has been acting director since the last head of the PPS, Jerry Pitzil, resigned last April to become judge advocate general of the Canadian Forces, says much has changed since then. By his count, 27 of the report’s 35 recommendations have been implemented. But many of the changes seem small in nature: the PPS, for example, recently hired its own media spokesman, added more office support staff and ordered a new computer system.

Bigger problems linger. The current Liberal government has balked at a recommendation to establish an all-party committee to review the PPS budget, which has hovered in the $ 10-million range in recent years. And there has been no real progress on the lingering issue of pay. The province’s 72 Crown attorneys, who handled 75,000 cases during the 1996-1997 fiscal year, went on strike for two days last summer to protest salaries that peak at $79,000 a year—far less than their counterparts in many other provinces make, not to mention lawyers in private practice. “Morale,” says one insider, “is rock bottom.”

Kaufman’s inquiry, which is being conducted at the same time as a management audit of the PPS’s organizational structure, may not help much. Neither would a public pummelling for the PPS’s handling of the Regan case. “Our staff should be judged on overall performance,” declares Herschorn, “not on one or two high-profile cases.” Last week, though, that was just wishful thinking. □