• D Molloy (law student)

Out of the Frying Pan into the Fire: Analyzing the integrity and efficacy of the Manitoba Criminal J

Topic Overview

Following the Manitoba Court of Appeal’s November 27, 2018 decision to issue a stay of proceedings, after 31 years, in R v Ostrowski, the integrity and efficacy of the Manitoba justice system is called into question insofar as its ability to avoid wrongful convictions and finalize criminal cases in a timely fashion.

Case Summary (R v Ostrowski 2018 MBCA 125) Then 38-years old, Frank Ostrowski was charged with the first degree murder of Robert Nieman in 1987 and was convicted later that same year in a jury trial. The conviction turned on evidence which indicated Ostrowski had planned the murder and provided the gun that was used to shoot Nieman; both the appeal to the Manitoba Court of Appeal and the Supreme Court of Canada where dismissed.

Ostrowski had been a high-level cocaine trafficker at the time and was previously charged with cocaine trafficking in 1986 which lead to a police raid of his home and the discovery of two hidden compartments. Ostrowski inferred this meant someone had informed on him and appeared to suspect Nieman due to Ostrowski’s alleged role in Nieman’s murder.

The Crown’s main evidence against Ostrowski was given by Matthew Lovelace who used Ostrowski as his cocaine supplier. Lovelace provided information to the police about the drug operation after he was arrested for possession for the purpose of trafficking. Lovelace also testified that Ostrowski said he had provided a gun to colleagues so that they could take care of Nieman. Lovelace was also recorded by Sargent Jacobson to have warned the police of Nieman’s murder and Ostrowski’s involvement the day before it occurred – this warning was recorded in Sargent Jacobsen’s personal notes and a formal report that he field which cumulatively make up the “Jacobsen Report” which was entered as evidence at trial.

These two submissions of evidence created two issues with the conviction that would drag out judicial proceedings for an unreasonable 31 year period and culminate as a miscarriage of justice: (1) the crucial Crown evidence given by Matthew Lovelace may have been improperly swayed by an exchange for the dismissal drug charges that had been set against him, which was never disclosed to Ostrowski’s lawyers; and (2) the supporting Crown evidence – the Jacobsen Report – was not disclosed to Ostrowski’s lawyers prior to the murder trial.

The Miscarriage of Justice

The Ostrowski trial was prosecuted by senior provincial Crown attorney George Dangerfield and junior provincial Crown attorney Sidney Lerner on behalf of Manitoba Justice. Dangerfield, then 53, was an experienced Crown attorney and should have known the proper court processes for legal hearings and disclosure of evidence. The miscarriage of justice that occured was the prevention of Ostrowski’s council from making a full answer and defence. That Lovelace had his charges dropped in exchange for his testimony could have been used to discredit his crucial evidence, and the Jacobsen report should have been disclosed prior to trial and could have been used by the defence to discredit Sargent Jacobsen’s testimony when inconsistencies arose. A stay of proceedings is also not a unique occurence for a trial prosecuted by Dangerfield. The stay of proceedings in R v Ostrowski marks the fourth murder conviction by Dangerfield that has been reversed in Manitoba – the other three reversals fell in favour of previously convicted Manitobans James Driskell, Kyle Unger, and Thomas Sophonow.

Implications for the current state of the Manitoba Criminal Justice System

The greater concern is not that Dangerfield had four reversals in his career but rather that each of the four reversals turned on the Crown withholding crucial evidence such as coerced confessions and secret deals to individuals that were about to face trial. However, it has only been since 2001 that the Crown has been legally required by the Supreme Court of Canada to provide the defence with all relevant evidence, even if it hurts their case, with the unethical breach of this standard potentially resulting in disbarment. Dangerfield’s conduct may not have been above board, and lead to four miscarriages of justice, but it occured in cases prior to the stricter approach taken by the Supreme Court of Canada towards withholding important case evidence. Hopefully, we will continue to see a steep decline in the number of reversals from cases tried in Manitoba after 2001 which will vindicate the integrity of the Manitoba criminal justice system.

At issue is also the length of time it took for the Ostrowski case to reach a final verdict as 31 years is a long time to determine a simple issue – that it is a miscarriage of justice for Crown attorneys to withhold important evidence. The Manitoba criminal justice system is limited by its users insofar as it can only make decisions based on the facts that are presented before it, and can only act on motions filed by the Crown, the accused, and their council.

In Ostrowski’s case he was first charged, tried, and convicted within one year in 1987; then when an application for judicial release was filed by Ostrowski’s lawyer in 2009 the application was heard and granted that same year; finally, when another application was made for ministerial review this year in 2018, the appeal was brought by way of reference from the Minister of Justice, on a motion by the defence to present new evidence on appeal, and was resolved with a stay of proceedings before the end of the year. The Manitoba Criminal Justice system has maintained efficacy with reasonable timelines for reviewing decisions which could potentially amount to a miscarriage of justice, but they are only as efficient as their implementation by users of the system.

R v Ostrowski, 2018 CarswellMan 550, 2018 MBCA 125, 151 W.C.B. (2d) 686