IMBALANCE IN THE COURT ROOM (PART 2)
After police charged former Ontario Attorney General Michael Bryant with criminal negligence causing death and dangerous operation of a motor vehicle causing death in relation to the death of cyclist Darcy Allan Sheppard, the Ministry of the Attorney General appointed BC criminal defence lawyer, and perennial independent prosecutor, Richard Peck as the Special Prosecutor. Since Peck was not licensed to practice in Ontario, Toronto criminal defence attorney Mark Sandler acted as his local agent.
Peck just happened to be in Ontario as he was already (and often) employed by the Ministry of the Attorney General as a Special Prosecutor in an extremely sensitive and embarrassing case for the Ontario Liberal government. The case involved allegations of alleged trial fixing by OPP Sergeant Michael Rutigliano and Ontario Crown Attorneys. The charges in that case would also be withdrawn.
A few short months before Bryant’s arrest, Peck again helped out the Ontario Liberal Government as Special Prosecutor in the case of two police officers who were accused of unlawfully strip searching Crown Attorney, Roger Shallow. Peck once again withdrew those charges.
The charges against Michael Bryant came at a very inopportune time for the Ontario government. There was a by-election going on in Michael Bryant’s old riding of St. Paul’s as he had very recently resigned.
“The incident comes at a vulnerable time for Premier Dalton McGuinty.
Already facing questions about scandals over spending at eHealth Ontario and the Ontario Lottery and Gaming Corporation, the arrest of a former cabinet minister put Mr. McGuinty in the spotlight again yesterday.” – Globe and Mail, September 2, 2009
As special prosecutor in the Bryant case, Richard Peck pointed to untested and often unreliable eyewitness identification as proof of specific prior acts of violence engaged by Darcy Allan Sheppard. Peck made the claim that Sheppard had a propensity for violence and these untested allegations were employed to show the probability that Sheppard had attacked Bryant, despite video, witness and forensic evidence that contradicted his claim.
If the justice system permits allegations of prior acts to predict the probability of future behavior then it should admit that prior behavior by Special Prosecutors to withdraw charges may be relevant to the appearance of independence by the special prosecutor. If a special prosecutor demonstrates a propensity to withdraw charges in cases involving police and government officials it could make his services more attractive to the government and offer him more high paying opportunities as a special prosecutor. It could also create an appearance of conflict of interest when the same defence attorney is repeatedly hired over a short period of time to act as special prosecutor in sensitive cases that could embarrass the government. It is also extremely unusual when that same attorney is not licensed to practice law in the province of Ontario.
Just days before Peck’s decision to withdraw all charges against Michael Bryant, the British Columbia government announced a review of how special prosecutors are appointed. As reported by the Canadian Press:
“They’re supposed to be the buffer between government and any appearance of conflict of interest.
But when the special prosecutor who cleared British Columbia’s solicitor general of election wrongdoing stepped down this week, he did just the opposite.
Terrance Robertson resigned and revealed that his law firm had donated to Heed’s campaign.
Yet the names of at least 15 of the 35 lawyers on the list of potential special prosecutors or their firms are also on Liberal party donation lists.”
Richard Peck was one of those 15 lawyers whose firm “Peck and Company” donated to the Liberals.
“Richard Peck was special prosecutor reviewing the possibility of polygamy charges in the community of Bountiful three years ago. His law firm donated $1,000 to the Liberals in 2005.”
“The revelations give at least the appearance of conflict of interest and fuel distrust among the public, legal observers say.
“I hope you don’t need a specialist in legal ethics to tell you that’s a problem,” Lorne Sossin of the University of Toronto said in an interview.
“The issue isn’t, ‘Are these people really motivated by some affinity for the government as reflected in having made a donation?‘ It really is a perception-based concern, and perception is everything.”
[Readers may be reminded that Lorne Sossin was also Michael Bryant’s good friend, classmate and the husband of Bryant’s chief of staff. Sossin raced through traffic to bring Bryant a suit to wear in front of the press when he was released from custody.]
As Sossin said “perception is everything.” The selection of a special prosecutor is usually made when the administration of justice and public confidence in the administration of justice requires it. The special prosecutor must be perceived to be independent and unbiased because the special prosecutor is granted the authority to make all decisions concerning the case. In a case where the accused is a former member of the government in office and a former Attorney General it is critical that the special prosecutor’s decisions are not only independent but also satisfy the perception that they are independent.
We will examine several of Richard Peck’s cases where he acted on behalf of the government as a special prosecutor. The analysis will demonstrate at the very least a perception that Peck may have a pro-accused viewpoint that may lead to a propensity to withdraw charges in cases involving police or government officials.