A murder trial in Windsor, made even more unusual by revelations of a late-night rendezvous between the judge and prosecutor, is headed to the Ontario Court of Appeal.
Superior Court Justice Kelly Gorman Monday dismissed an application for a mistrial in the case of Andrew Cowan, convicted by a jury in August of second-degree murder. Gorman, the judge who heard Cowan’s case and who is now being accused of impropriety for fraternizing with the assistant Crown attorney who prosecuted Cowan’s case, ruled she does not have the jurisdiction to declare a mistrial after a jury has returned a verdict.
That jurisdiction, Gorman ruled, lies with the court of appeal.
Cowan, 45, was the driver of a Ford F-150 pickup truck that became airborne and tore into the second storey of a commercial building in Leamington in 2012. Cowan’s friend, Edward Witt, owned the truck and was the front-seat passenger. Witt died in the crash. Cowan survived.
Cowan stood trial for first-degree murder. A jury convicted him after a month-long trial.
Court has heard that an articling student in the local Crown attorney’s office reported to her superiors that she and the OPP officer who headed the crash investigation went for drinks with Gorman and prosecutor Tom Meehan the night the jury returned its verdict. The foursome called it a night at 11:20 p.m., the student said. The Ministry of the Attorney General’s director of Crown operations in the region launched an investigation during which Meehan divulged that he and the judge got together alone later that same night to have dinner and a bottle of wine.
Ducharme called for a mistrial after he learned of the rendezvous. Then came more revelations — that Meehan has been to the judge’s home and that he is a regular guest at an annual event she hosts there, but that he opted not to attend this year because it fell in the midst of Cowan’s trial.
Ducharme, who filed his mistrial application with the court last month, made oral arguments Monday. He disparaged Meehan, calling him a “stranger to the truth,” and accused the judge of a “lack of impartiality” during the trial.
“This trial was not conducted on a level playing field,” Ducharme said, alleging the judge’s existing relationship with Meehan coloured her rulings during the trial.
Ducharme asked the judge a number of questions during his argument. “Did you ask Meehan to go out for drinks immediately after the jury verdict?” he asked.
“Were there other private communications during the trial?”
The judge did not respond.
Ducharme then offered his understanding of what was said over drinks.
“I’m sure Your Honour will correct me if I’m wrong,” he said repeatedly.
Again, Gorman would not be baited.
Meehan has been removed from the case, replaced by Michael Carnegie, regional counsel from the Ministry of the Attorney General’s London office.
Carnegie, in his submissions to the court, said the judge was following the law in not responding to Ducharme’s allegations.
“To suggest silence is somehow telling is beyond the pale,” Carnegie said.
He said socializing with Meehan may have been “ill-advised,” but it would “make a problem worse” to err in law and declare a mistrial. That decision should be made by a court of appeal, Carnegie said.
“We are not here to point fingers and shame the court into exceeding its jurisdiction,” he said.
Outside the courthouse after Monday’s hearing, Ducharme said he drafted his argument to Gorman with an appeal in mind.
“I’ve been practising law for over 40 years … and I have never, ever in my career made submissions like the submissions I made today. I’ve never even been aware of a judge doing anything along the lines of what I complained about today.”
Cowan returns to court Tuesday for sentencing. Second-degree murder carries a mandatory life sentence with no chance of parole for a minimum of 10 years. Carnegie said he will not seek more than that minimum.
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