A man convicted of murder after surviving what his lawyer called a suicide pact with his best friend has had the conviction thrown out, partly because the judge went for drinks and dinner with the prosecutor immediately after the verdict.
Andrew Cowan suffered a severe brain injury after driving his pick-up truck at up to 154 kilometres an hour off a road and into a building 10 years ago. His best friend, Edward Witt, was killed. After an evening of drinking and gambling at a casino, Mr. Cowan texted a friend that he would see her in heaven because he and Mr. Witt were considering taking their own lives, evidence at his 2017 trial showed.
A suicide pact has been accepted as a defence in Canadian law in narrow circumstances: If both parties intend to die at the same time and by the same means, and where the risk of death is equal for both. (The Quebec Court of Appeal affirmed the defence in a 1993 case.)
The Crown contended it was an attempt at a murder-suicide, and Mr. Cowan was charged with first-degree murder. A jury convicted him of second-degree murder. Ontario Superior Court Justice Kelly Gorman gave him a mandatory life sentence, and set his eligibility for full parole at 10 years. One of the issues on appeal was whether Justice Gorman gave incorrect instructions to the jury on the suicide-pact defence.
But the Ontario Court of Appeal, in a unanimous ruling on Wednesday, said it did not need to decide the issue of the suicide-pact instructions; instead, it threw out the guilty verdict because of an appearance of bias owing to a close friendship between Justice Gorman and Crown attorney Thomas Meehan of Windsor. The court ordered a new trial.
Unknown to Mr. Cowan’s legal team, Justice Gorman and Mr. Meehan had their own pact. They had agreed nearly two years earlier not to work on the same trial. Mr. Meehan attempted to have the Cowan case passed to a colleague after finding out that his friend would be the presiding judge.
Leaving out those facts, the Crown attorney told defence lawyer Patrick Ducharme of his friendship with the judge, and Mr. Ducharme agreed to go ahead in front of Justice Gorman. Under a 1991 Supreme Court ruling, the Crown must disclose to the defence information relevant to their ability to defend their client.
After the verdict, the Crown disclosed the drinks meeting to the defence, and later in a court hearing revealed the two-hour dinner.
James Lockyer and Gabriel Gross-Stein, who represented Mr. Cowan at the appeal court, argued that there was a miscarriage of justice because the trial lacked an appearance of fairness.
The court agreed unanimously with the defence. “The Crown’s agreement not to appear before the trial judge and his attempts to have the file reassigned indicate a real risk that the appellant was stepping on to a tilted field,” Justice James MacPherson wrote, backed by Justice Michael Tulloch and Justice Peter Lauwers.
“The fairness of his trial depended on him knowing this disadvantage. The Crown should have informed him. He failed to do so and lost sight of his responsibility to the administration of justice in the process.”
The court also cited the fact that Justice Gorman had asked the Crown prosecution team to join her for drinks immediately after the trial concluded, at a sports bar at her hotel and that she later had dinner with the Crown prosecutor alone. An articling student who attended the first part of the evening was so concerned she informed her superior the next day. Twice during drinks, Justice Gorman said, “As long as Mr. Ducharme doesn’t walk in.” Based on the events, Mr. Meehan received a 10-day suspension, which was reduced to five days after arbitration.
The agreement to be part of the same trial, and the dinner, created a “reasonable apprehension of bias,” the court said, noting that even if there is no actual bias, a trial must be seen to be fair.
Mr. Lockyer said in an interview that the province should not prosecute again, in the circumstances: A brain-injured man who now lives in a care home, substantial evidence of a suicide pact and a trial verdict rejected because of an appearance of bias.
“I would question if it was ever in the public interest to prosecute,” he said.
Brian Gray, a spokesperson for the Ontario Attorney-General, said it would be inappropriate to comment while the matter is before the court.
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