When the police tangle with the Crown

When Edmonton police criticized Alberta’s prosecution service this month for its handling of the homicide of an eight-year-old Indigenous girl, they were doing something rarely, if ever, done in Canada. They were intervening in a prosecution to demand accountability from the next link in the justice-system chain, after a plea deal they objected to. They were baring their fists and coming at the prosecutors. All this in public, too.

Now the police are being pilloried for it. Prominent criminal lawyers from a national organization are accusing the Edmonton Police Service of trying to intimidate prosecutors and thereby undermine their independence. Those lawyers say the police are threatening the rule of law and undermining the public’s confidence in the justice system.

Yet it was a real issue the police were raising: whether the justice system explains and justifies its actions to the public it serves. Only when it does can the public assess whether it is making its choices for the right reasons.

Here’s a news flash for those who worry the police undermined the public’s confidence – the public is not walking around in a state of high confidence about the justice system at the moment.

Shooting the messenger

Instead of castigating the police, wouldn’t it be better to tackle problems in the open – and thereby try to increase what we might term justifiable confidence? Unless the goal is to maintain confidence whether the system has earned it or not.

Does it deserve confidence in this case? Police laid the most serious charge possible, first-degree murder. After a preliminary hearing, a judge reduced it to second-degree murder. Then came the plea agreement between the Crown and stepmother, an agreement police say they learned of by “happenstance.” Police say the Crown never communicated to them any problems with the evidence supporting a murder charge until the surprise deal.

Here the matter becomes a bit tangled. Police say a prosecution official informed a homicide detective that an eight-year sentence would be part of it. A lawyer for the Edmonton Police Service, Megan Hankewich, then expressed “shock and horror” at what she described as a miscarriage of justice, in a letter to Kimberley Goddard, the assistant deputy minister in the Attorney General’s department, responsible for overseeing the independent prosecution service. (The letter was sent under the signature of Edmonton’s police chief, Warren Driechel.)

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If the plea deal were allowed to go ahead, Ms. Hankewich wrote, police would share important information from their investigation with the public. The plea deal did go ahead, but with no agreement on a sentence. No sentencing date has been set.

Some observers believe the police may have simply been mistaken about the eight years. Others say the police letter had the effect of ending that part of the plea agreement. Ms. Hankewich, the police lawyer, said that the eight years was a critical part of her complaint to Ms. Goddard, the assistant deputy minister. If it was wrong, she told a news conference, why did Ms. Goddard, in her written response, not correct her?

Ms. Goddard has declined to say anything publicly, and the Crown has not explained how its plea deal served the public interest. The Sphinx-like silence, ostensibly not to prejudice others accused as accessories, is excessive. Surely the reason for a plea bargain in the homicide of a child can be placed on the public record in a timely way.

A victim without a voice

The context matters. The eight-year-old girl was the ultimate voiceless victim. During her life, she absorbed chronic, vicious abuse. The agreed statement of facts between the Crown and the stepmother makes that heartbreakingly clear. Blunt force caused injuries “centred on the eyes, nose, forehead, right cheek, lips, teeth, left ear and sides of the head.” She had sepsis throughout her body from an untreated tooth infection. Her body was a repository of fresh and healed wounds. (The girl’s name is subject to a publication ban to protect the identity of her step-siblings.)

So this is not just another prosecution. It’s not even just another homicide. It’s about a child whom society failed to protect during her short life and, in death, deserves justice.

And yes, there should be an insistence on moving Heaven and Earth to ensure Indigenous children receive the protection and the justice they were so widely denied throughout much of Canadian history.

In this context, the police decision to go to the assistant deputy Attorney General asking her to stop the plea deal is understandable, as is the decision to let the public know.

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Murder versus manslaughter

The difference between murder and manslaughter is not just a technical one. Murder carries the toughest mandatory penalties in the Criminal Code. Manslaughter has no mandatory penalty. Only the charge of murder fully expresses society’s abhorrence of a deliberate killing.

On the face of it, the evidence laid out in the five pages of the agreed statement of facts could have been murder or manslaughter. The accused person’s intention is key.

Even without murderous intent, if a person causes harm that they know is likely to kill, it is enough to obtain a murder conviction.

After-the-fact evidence can be used to establish intent. In this case, medical evidence showed that after the child was given a blow to the head, she was still alive and medical help could have saved her. Instead, the stepmother contacted acquaintances who arrived with a hockey bag to take the girl’s body away. (The statement of facts elides over who struck the blow and with what weapon, even though the stepmother pleaded guilty to having caused her death.)

There are precedents for murder in similar cases. The 1998 killing of Randal Dooley of Toronto produced second-degree murder convictions for his father and stepmother. Repeated abuse, a head injury and a failure to seek medical care featured prominently, and the murder convictions were upheld in a 2009 Ontario Court of Appeal ruling.

The Chaloner challenge

The late Richard Chaloner, a senior Crown official in Ontario, used to tell young prosecutors that when they were considering dropping a charge, they should imagine themselves standing up in the legislature to explain and justify their decision. If they can do that, he said, the Attorney General will have their back.

“You have a public duty. You need to be able to put it on the record,” says Anthony Moustacalis, a former president of the Criminal Lawyers’ Association, describing Mr. Chaloner’s guidance to him when he was starting out with the Crown.

Would the Alberta Crown Prosecution Service feel comfortable explaining its plea bargain in the legislature?

Mr. Chaloner’s challenge is a good one. The Edmonton police, through their public challenge to prosecutors, have forced into the open the apparently massive dysfunction in their relationship with the Crown Prosecution Service. Ms. Hankewich, a former Crown, told a news conference the problems go back for nearly a decade.

The dysfunction needs addressing, whether through legislative hearings or a judicial inquiry, to restore confidence in the police-Crown relationship, and to let the public know whether the justice system lived up to its ideals in the case of an anonymous, forsaken eight-year-old girl.

Editor’s note: A previous version of this article incorrectly attributed a paraphrased statement from Megan Hankewich's letter to Kimberley Goddard, the recipient of the letter. This version has been updated.

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