Apr 12 2006 – CBC News
Justice Canada is being advised not to charge a Yellowknife police officer that a judge ruled attacked a man outside a bar in the city.
The Alberta Justice Department concludes it’s unlikely that Cst. Scot Newberry would be convicted if charged, and that a trial would be very expensive and not in the public interest.
CBC gained access to the legal opinion, given by an unnamed lawyer in Alberta’s justice system, this week.
The lawyer gives two main reasons for his opinion. He says that because of the circumstances of the incident and its follow-up, a conviction against Newberry was unlikely. And he says even if that’s not the case, it isn’t in the public interest to take the case to court.
Stu Whitley, the senior regional director for Justice Canada in the North, sought the legal opinion in the matter, which dates back to October 2004, when Devon Herback was arrested for assaulting Newberry.
However, the case went askew for the Crown in April 2005, when a Yellowknife judge threw the charges against Herback out of court, and said he had grave concerns about Newberry’s conduct during the incident and at trial. Judge Brian Bruser said he felt Newberry had used excessive force, and called his testimony “vague, evasive, implausible, or simply unbelievable or unreliable.”
An RCMP investigation referred the matter to the Crown’s office, which then requested an outside opinion from a B.C. lawyer. Between waiting for that opinion, and a failed attempt at starting a restorative justice process, more than 17 months have gone by since the original incident, the Alberta lawyer notes.
Herback has since decided to lay a complaint through the RCMP’s own internal process.
The lawyer concludes that even if Newberry was charged, there may not be a reasonable prospect of conviction. He notes the judge and the Crown in the case both came to different conclusions about the testimony, and the credibility of the two parties involved.
“Given the two versions of events, and the different opinions of two legally trained experts who heard the evidence, can the Crown truly say that there is not a reasonable doubt as to what actually happened in the case?”
Public interest
“Cst. Newberry is a member of the public, and the ‘public interest’ necessarily includes a consideration of his interests,” the lawyer writes.
The lawyer details the fact that Newberry had been placed on administrative duties and had been seen to be ‘pale and trembling’ during an internal RCMP review of the matter.
“While it is sometimes tempting to scoff at characterizations of the ‘exquisite agony’ faced by those awaiting trial, the expression may actually apply in this case,” the lawyer writes.
Newberry could successfully argue that with the contradictory evidence, the long delay before charges were laid, and the aborted restorative justice process, the handling of his case amounts to an abuse of the legal process, the lawyer says.
As a result, he says, any trial would likely be long, and expensive, and for a charge like common assault “hardly the most serious of charges,” does not meet the test of being in the public interest.
The lawyer points out that he does not condone the conduct of Cst. Newberry on the night in question, and says if the complaint by Herback proves to be true, the officer should be punished.
But that isn’t the same as deciding if the Crown has a chance of winning a criminal case against the officer in court, the lawyer says.
“In conclusion, I have formed the opinion that no criminal charges should be laid against Cst. Newberry in relation to this incident,” the lawyer says.
“I do not foresee a reasonable prospect of conviction. If I am wrong in that opinion, I do not feel that the public interest requires a prosecution, given the unique facts of this case.”
Earlier this week a Justice Canada official said the department was going to follow the Alberta advice.
Calls to Justice Canada by CBC were not returned.
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