CANADA

Splitting a decision

Nine of 18 charges against Gerald Regan are stayed

BRIAN BERGMAN April 13 1998
CANADA

Splitting a decision

Nine of 18 charges against Gerald Regan are stayed

BRIAN BERGMAN April 13 1998

Splitting a decision

CANADA

Nine of 18 charges against Gerald Regan are stayed

BRIAN BERGMAN

As he has done so often over the last three years, former Nova Scotia premier Gerald Regan headed into a Halifax courtroom last Friday morning to listen to dry lawyerly arguments concerning a series of sex-related charges against him. But on this particular drizzly morning, there was an unmistakable spring to Regan’s step and a smile on his face. His high spirits may have been partly explained by the fact that his daughter, Nancy Regan, a local television news anchor, had given birth the previous morning to a healthy eight-pound, 12-ounce boy. But it had even more to do with a 61-page written ruling by Nova Scotia Supreme Court Justice Michael MacDonald that arrived on the same day as the latest Regan grandchild. Responding to a motion alleging that the former politician had been the victim of an abusive police investigation and prosecution, MacDonald stayed nine of the 18 charges facing Regan. “It was a tremendous victory yesterday,” Regan told reporters as his wife, Carole, looked on. “I’m greatly pleased with it.”

To the casual observer, Regan’s buoyant mood may have appeared puzzling. After all, while MacDonald had weeded out nine of the 13 female complainants brought forward by the Crown and struck down nine indecent assault charges, the 70-year-old Regan must still stand trial on nine very serious charges, including rape, attempted rape and unlawful confinement. The charges relate to incidents involving four women that are alleged to have occurred between 1956 and 1969. Regan, who served as Nova Scotia’s Liberal premier from 1970 to 1978 and as a federal cabinet minister from 1980 to 1984, has consistently denied any criminal wrongdoing since first being charged in March, 1995. And following MacDonald’s ruling, he told reporters he was eager to get to trial. “I’m anxious,” he said, “to face my accusers on these false charges.”

That may not happen any time soon. Last Friday’s court hearing dealt with issues of scheduling. While MacDonald expressed a firm desire to begin the trial no later than this November, a number of other matters must be resolved first—including a possible bid by Regan’s lawyer, Edward Greenspan, to split up the charges, resulting in two or more separate trials. As well, lead prosecutor Adrian Reid advised the court that the Crown is considering an appeal of MacDonald’s ruling. If that happens, it could force further delays.

charges facing Regan, Greenspan’s arguments failed to meet the Supreme Court’s test. In fact, MacDonald said, there was “a strong societal interest” in having these charges fully prosecuted. But he did find cause to stay many of the less serious charges—and his reasons had a lot to do with what he described as “troubling” conduct by some police and Crown officials.

MacDonald criticized RCMP Sgt. Bill Price, who publicly confirmed that Regan was the subject of a sexual assault investigation on Oct. 27, 1993—17 months before charges were laid. Normal police practices dictated that Regan should not be named. But MacDonald’s harshest criticisms were reserved for Susan Potts, who served as lead prosecutor on the Regan case until she was replaced by Reid in December, 1995. The judge notes that in the summer of 1994, prior to charges being laid, Crown counsel, and in particular Potts, became heavily involved in interviewing potential complainants. MacDonald says that such préchargé interviewing by the Crown is rare in Canada—and for good reason. “Someone,” says MacDonald, “must objectively and dispassionately review the charges to be laid. That task falls squarely within the mandate of the Crown. It is impossible to retain the requisite level of objectivity by conducting lengthy (and no doubt emotional) pre-charge interviews with complainants.” MacDonald was even more scathing about police notes indicating that, in the fall of 1994, Potts was monitoring the court docket to avoid having the case heard by a judge who had been appointed by the Liberal party. MacDonald called this “a blatant attempt at judge shopping, pure and simple.” He added: “This gives the appearance of a Crown attorney who is attempting to secure a conviction at all costs.”

Greenspan, who had used almost identical words to describe Potts’ actions during his arguments on the abuse of process motion, could barely contain his glee at this part of MacDonald’s ruling. And at week’s end, the flamboyant Toronto-based defence lawyer announced he would again ask Nova Scotia’s attorney general to appoint an independent prosecutor to review the Regan case to see if the remaining charges should proceed (a similar request, made in 1995, was rebuffed). Failing that, was Greenspan confident that his client would be exonerated? “Let’s put it this way,” he said. “I’m looking forward to the trial.”

In the meantime, though, Regan and Greenspan were savoring what they touted as “vindication” of their oft-stated view that, as a former premier, Regan had been unfairly singled out by overzealous authorities. From the case’s early days, Greenspan stated his intention to have all of the charges against his client stayed through a rarely invoked—and even more rarely successful—procedure known as an “abuse of process” motion. As MacDonald describes in his ruling, the Supreme Court of Canada has declared this remedy should be used only in the “clearest of cases” where the conduct of police and prosecutors “shocks the conscience of the community such that it would genuinely be unfair and indecent to proceed” with charges.

MacDonald ruled that, in the most serious