Posts Tagged ‘crown’

The injured hospital

- March 2nd, 2013

 

1297171642844_ORIGINALWe’ll never know what good the $1.2 million Michelle Cadger, 49, somehow managed to pilfer from the Misericordia Health Centre over a decade might have done if it had gone to public health services or capital projects instead of her raging VLT habit and penchant for gold.

Cadger will spend at least a year locked in Stony Mountain prison after being sentenced to three years this week for theft over $5,000. [Article here].

But, like Judge Wanda Garreck said, this was far from a victimless crime. Ultimately, as she says, it’s the public left holding the bag.

I can’t explain how an audit found $1.46 million was missing, but Cadger — who says she didn’t track her many thefts — only pleaded to stealing the million two.

I can’t explain how her husband of 25 years didn’t know something was amiss given they suddenly had a new Toyota and his wife — who made a $40,000 annual salary — had acquired luxury goods including:

  • A Louis Vuitton wallet
  • A Christian Dior purse
  • Many pieces of gold jewelry, some crusted with diamonds
  • A Tag Heuer watch
  • Diamond earrings

And while those items — along with the thousands left in bank account balances, the Toyota Corolla Sport [?] and envelopes stuffed with cash found in Cadger’s apartment — have been forfeited to the Crown, it was admitted it barely makes a dent to compensate what she took.

And then there’s the intangibles and ancillary costs the hospital [read: the taxpayer] incurred as a result of the colossal ripoff Cadger managed to perpetrate.

But I won’t hector you on it. Instead, below is presented the bulk of the victim impact statement the hospital’s CEO, Rosie Jacuzzi, filed in the sentencing hearing, for the record. An offer to read it into the record was declined, but the Oct. 28 statement was left in the hands of the judge to take into account.

The theft by Ms. Cadger has had a significant impact upon this small finance staff, other heath centre staff, the executive and the board of directors. MHC has never experienced a theft by an employee. Management and staff felt a sense of betrayal and violation of trust, a core value of the health centre and our founders, the Misericordia Sisters.

The large size of this theft, and the lengthy period of time over which it occurred has had a negative impact on the morale of staff. The review and interviewing process which have been necessary due to this theft has caused a high level of stress and anxiety to all involved.

Staff felt isolated and the morale plummeted resulting in turnover within the finance department. In addition, there was a loss of confidence in the finance department’s ability to steward resources effectively.

Given that MHC is a health care facility which is funded largely by public funds, I am also concerned that this theft has negatively impacted the excellent reputation of MHC and the Misericordia Health Centre Foundation, which is a charitable foundation providing further financial support for MHC.

This case has been widely reported on in the media. The negative publicity has potentially compromised donations and donor confidence in how the health centre steward their funds. MHC is in a 43 million dollar redevelopment campaign where out foundation is responsible to raise 7 million dollars from private donors toward the overall capital costs.

“The money that was stolen had a direct impact on the health centre’s ability to provide enhanced patient equipment, services and upgrades not funded by government and public dollars. The health centre’s operating and capital budgets are lean and ancillary funding is relied upon to provide enhancements that improve the quality of life for our patients and residents.

“In addition, the time spent by staff, executive and board of directors as a result of this theft has been significant.

The theft was first uncovered in January 2010, when the finance manager became aware that an excessive cash amount was ordered for the ATM located ay MHC in December.

As a result of this discovery, an internal review in January 2010 took months of time of the finance manager as it was necessary that she carry out an analysis of the physical flow of cash, how the cash was used and how it was recorded in the books.

As a result of her review with which revealed the cash shortage, MHC hired KPMG to carry out a forensic audit. This process took weeks to months of extensive interviews of the finance department staff by KPMG and a review involving an analysis of transactions for a ten year period.

Given the nature of this audit, finance department staff spent weeks retrieving and reviewing financial records and documents and meeting with accountants and the police in the course of the investigation.

Both the executive and the board of directors have also spent significant time reviewing these issues and providing direction. An extensive amount of staff timer and energy has been diverted to this theft which could have been utilized in a more constructive manner.

In addition to financial losses as a result the staff time spent on this extensive investigation, there have also been significant costs incurred by MHC, including the costs of the KMPG forensic audit, internal audit and legal fees incurred in providing advice to MHC.”

While it remains a mystery how nobody noticed the missing money for so long, it would be wrong to blame the victim. Misericordia does good work.

It would be wrong to let the actions of one dowdy gambling addict derail the public good they’re trying to do for the benefit of the sick and elderly in the city.

More information on the centre’s “future of care” program can be found here.


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Categories: Club Regent Casino, finance clerk, gambling addiction, General, Michelle Cadger, misericordia hospital, prison, theft, Toyota, VLTs | No comments

Kines heading back for new murder trial: The Court of Appeal’s reasons

- October 17th, 2012
1297324287043_ORIGINAL

(Jason Kines leaves the Law Courts Complex in Winnipeg last week/ Jason Halstead/Winnipeg Sun)

Manitoba’s top court issued reasons Wednesday on why it sent accused killer Jason Allen Kines back to trial on charges of first-degree murder, aggravated sexual assault and sexual interference in connection to the death of Venecia Audy, 3, in August 2006.

Justice Brian Midwinter acquitted Kines after weeks of evidence being put forward at a Dauphin jury trial earlier this year.

The Court of Appeal ruled last week that Midwinter was wrong to take the case out of the hands of the jury after ruling bite-mark evidence put forward by the Crown though a dental expert didn’t go far enough to prove Kines was the biter “beyond a reasonable doubt.”

Below are excerpts of the appeals court panel’s reasons. A new trial date for Kines is pending and he remains free on bail in Saskatoon. He is presumed innocent.

[Reasons authored by Justice Richard Chartier, on behalf of Barbara Hamilton, Marc Monnin and himself.]

“The autopsy revealed that the cause of death was multiple blunt-force trauma resulting from non-accidental trauma. The victim had a combination of lacerations, bruises and human bite marks all over her body. Her vagina had been torn and bite marks were found just above her vagina.”

“A forensic odontologist testified that [Kines] had a “very highly unusual” dentition that lined up with most of the bite marks on the body. He definitively excluded the other member of the household as being the biter for all but one bite mark. The expert testified that the accused was “most likely” the biter. He also said that he was “very confident” in his identification of the accused and explained that “probable” identification was as definite a designation as his discipline allowed, except in rare circumstances.”

Midwinter’s principal reason he took the case from jury, Chartier said,  was “his conclusion that the evidence identifying the accused as the biter did “not give rise at law to proof beyond a reasonable doubt.” Because it was only “probable,” that led him to conclude there was insufficient evidence to support a conviction.

“The judge in this case appears to have failed to differentiate the question of whether the Crown met its burden on a directed verdict test (the evidentiary burden) with whether the Crown met its burden of proof beyond a reasonable doubt (the burden of proof).”

Evidentiary Burden = determines whether an issue should be left with trier of fact. 

Burden of Proof = “determines how the issue should be decided.”

“The first is for the judge; the second is for the jury.” “Moreover, the “proof beyond a reasonable doubt standard” has no direct application on a judge’s consideration of a directed verdict motion.”

“The judge’s conflation of the evidentiary burden with the ultimate burden of proof caused him to engage, to an impermissible degree, in a weighing of the evidence, to the point of determining questions which fell within the jury’s purview. We also agree with the Crown that the judge failed to consider the circumstantial evidence in its totality. Given that we are ordering a new trial, we will simply state that there was other contextual evidence which the judge did not seem to consider. In our view, the Crown’s suggested inferences fall within a range of inferences a jury could reasonably draw. As such, there was some evidence that the person accused of the offences was the perpetrator of the offences.”

“… In the end, the judge’s conclusion that the identification evidence in this case does not meet the test on a directed verdict motion cannot be allowed to stand. Whether the evidence adduced but he Crown will ultimately be sufficient to meet the burden of proof beyond a reasonable count will be for the jury to decide.”

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Categories: General | 1 comment

“Lack of care must be serious enough to merit punishment.”

- July 16th, 2012

(The wreck that was Violet Gooding’s car on Dec. 3, 2008/Marcel Cretain/Winnipeg Sun)

The full facts of John Casanova’s acquittal for dangerous driving in the fatality of Violet Gooding, 90, on Dec. 3, 2008 can be found here. I won’t repeat them.

But it’s important to point out Judge Marvin Garfinkel’s ruling today followed from a consideration of a large number of applicable cases presented by the Crown and defence that dealt with dangerous driving, “the standard of care” and the continuum of negligence with respect to dangerous drive offences.

In other words, Garfinkel surveyed and interpreted the law of the land in Canada as presented to him and arrived at the following (you’ll get the import of the law and his analysis in what’s presented below).

“It is with the principles of these cases that the facts in this case involving Mr. Casanova must be considered and assessed.

Consequences of the collision in this case were tragic. Violet Gooding died. There is nothing that this court can do that can repair that harm.

It is a tragedy.

However, the principles of previous cases show that the consequences are not a determinative factor. The manner of driving in this context must be assessed.

The cases, the principles cited show that there is a continuum of negligence. A departure from a standard of care expected of a prudent driver may give rise to civil liability.

For a criminal sanction to be imposed, it must be proven there was a marked departure from the standard of care of a prudent driver.

The lack of proper care must be sufficiently serious to merit criminal punishment.

Mr. Casanova was operating his motor vehicle on St. Mary’s Road between 10 and 10:30 a.m.  The vehicle was equipped with studded tires, but it can’t be said with certaintly what effect that had on the collision.

The road was clear, the sun was shining. There was no obstruction to vision.

Mr. Casanova was speeding. His speed was excessive. He left the red light quickly and moved into the left lane.

It would appear that vehicles speeding on St. Mary’s Road in this area were not unusual.

However, Mr. Casanova’s speed was excessive.

Violet Gooding had vision problems. What effect that had on the circumstances cannot be stated. It is not known. Moreover, there is no contributory negligence factor in a criminal prosecution.

It is not known when Mr. Casanova saw the turning vehicle.

Infrences from testimony of the witnesses can be drawn that Mr. Casanova did not try to brake soon enough, or that he was traveling too fast to stop safely.

That leads to the conclusion that there was a departure from a standard of care that would justify civil liability.

However, the manner of driving did not amount to a marked departure of a standard of care warranting of criminal sanction.

The lack of prudence by speeding is a manner of driving that even the most careful driver may occasionally perform.

I am unconvinced that Mr. Casanova’s manner of driving constituted a marked departure from the standard of care of a reasonably prudent driver in similar circumstances.

Therefore I find the accused not guilty.”

I feel a Crown appeal coming on, but that’s just a hunch. What’s a bet if there is, a ground will involve the line bolded above.

Do speed limits matter in law? Stay tuned.

For the record: Saul Simmonds was Casanova’s lawyer. John Barr acted on behalf of Manitoba Prosecution Service.


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Categories: fatal crash, General, Saul Simmonds | No comments

Manitoba’s mental health court sits May 10

- April 4th, 2012

It was many, many moons ago that the NDP declared there would be a provincial mental health court in Manitoba. Nearly a decade has passed.

From the WFP 6/11/2011: By Mary Agnes Welch

It was 2004 when then-Justice Minister Gord Mackintosh first said a mental health court was in the works.

“We’re of the view that if we’re going to have a successful mental health court we have to develop this slowly and sure-footedly,” he told the Free Press at the time.

“Slowly” turned into seven years. Last week, the province announced the court would finally launch this winter.

Selinger said it took time to do proper due diligence and planning on things like the mental health court to get them to a workable point.

“We put it in the throne speech last fall and we did it this spring,” said Selinger of the mental health court. “That’s a pretty fast turnaround.”

But, according to a judicial memo circulated today, we can all mark May 10, 2012 on our calendars as the day the shiny new MHC will sit for the first time.

Re: MENTAL HEALTH COURT 

Effective Thursday May 10, 2012, Mental Health Court (MHC) will sit weekly on Thursdays at 1 p.m. in courtroom 408, 408 York Avenue, Winnipeg Manitoba.

This problem-solving court will hear matters where the accused’s involvement with the criminal justice system is a result of mental health issues and there the particulars of the incident(s) fall within the sets of criteria established by the Crown and the Winnipeg Regional Health Authority’s Forensic Assertive Community Treatment (FACT) team.

PROCESS: 

Persons with mental health issues who have been or are about to be charged with an offence may be identified to the Crown by police, courts or corrections staff or counsel.

In these cases, the Crown will review the file and may refer the accused to the FACT team for a suitability and amenability assessment. Counsel may assist the accused in filing an application for and amenability assessment. Counsel may assist the accused in filing an application form and the required waiver form. Provided the accused is a suitable candidate for MHC and willing to participate, the FACT team will prepare a report to the MHC judge which will include a treatment plan. This process constitutes application to Mental Health Court.

Until an accused applies for MHC, the charges will be remanded on the pre-trial coordinator’s dockets. Upon application, the accused with appear for the first time on the MHC docket as arranged by counsel with court staff. The accused will enter guilty pleas, file application and waiver forms and enter into a bail as agreed upon by all parties. The charges will then be remanded week to week while the accused’s mental health is addressed during the treatment plan.

Each Thursday at 12 p.m. the MHC judge will meet with the FACT team and counsel in Judges’ chambers to discuss the treatment progress of each person on the docket. During the court sitting as the Crown calls each matter the MHC judge will address the named accused directly to encourage ongoing commitment.

As each accused’s mental health improves, appearances may become less frequent. Upon the treatment plan being completed, the accused will make a final appearance before the MHC judge either to be sentenced to a community based disposition or for the Crown to stay the charges.

The entire process is expected to take 18-24 months from referral to disposition.

…

ISSUED By Chief Judge Ken Champagne, Provincial Court of Manitoba

Over the past few months I had heard rumblings this would be happening, but like many, I’m sure, had no idea when.

The only other thing I had heard is that the Crown prosecutor who will be running the show is Susan Helenchilde, who is leaving community prosecutions to take this on.

The first Mental Health Court started in 1998 in Toronto, putting us well behind the curve in terms of time — that’s also allowed (hopefully) Manitoba to gain from the knowledge MHC’s in other jurisdictions have only gleaned through trial (pun intended) and error.

It’s interesting to note that in Toronto’s system, there’s a wide range of offences that aren’t eligible for MHC (below).

We’ll obviously learn in coming days what’s permissible for MHC in Manitoba.

I’d also highly recommend reading the “factors to consider” section of the Toronto MHA website. It’s also clear that Manitoba’s taking a bit of a ‘baby-step’ approach by electing (as per the memo above) to not stay charges until the treatment plan is completed.

Geeks can read stats analysis and other research topics on MHC’s here at Stats Can. (Like the court, your tax dollars paid for it, may as well read it.)

3. Eligibility of Offences

    • a. Offences that are not eligible (also known as Class III for purposes of other practice memoranda)

The following classes of offences will not be eligible for treatment plans or supervisory programs as an alternative to prosecution, regardless of the circumstances of the alleged offence or the accused:

      • murder, manslaughter, infanticide, criminal negligence causing death;
      • causing death or bodily harm by dangerous or impaired driving;
      • any offence causing serious bodily harm;
      • simple impaired driving or driving with a prohibited blood alcohol concentration;
      • offences involving firearms;
      • criminal organization offences;
      • kidnapping;
      • spouse/partner offences
      • child abuse;
      • offences involving child pornography
      • sexual offences including sexual assault, interference and exploitation, invitation to sexual touching and incest;
      • specific hate offences
      • home invasions;
      • perjury;

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Categories: General, mentally ill, MHC, slow, treatment, Winnipeg Regional Health Authority | No comments

In Mark Stobbe’s defence, for the record

- March 29th, 2012

(Chris Procaylo/Sun Media/QMI Agency)

Mark Stobbe’s lawyer spoke with media following his acquittal on Thursday.

Tim Killeen makes a number of insightful comments about the case and Stobbe’s defence, presented here in full for the record.

On fighting the Crown’s circumstantial murder case

We focused on what had occurred. And the difficulty in this case is it was always clear that there was no motive whatsoever advanced, and there was no connection. She clearly had been killed in the yard and her body moved.

We focused on that and unfortunately, there was a tremendous amount of evidence dealing with the possibility that somebody had ridden a cycle back — sadly disregarded the fact that there was a pretty clear indication right from Oct. 25th that the car wasn’t there until well after the time when all the cyclists were talking about.

The other issue had been always, the DNA was an issue — I don’t know how it was disregarded.

On the decision to prosecute Stobbe after Alberta said ‘no,’ and the false widespread impression something had evolved about the evidence  in the case over the years. 

Frankly, I don’t know why this prosecution proceeded the way it did.

“As some of you know, the original opinions — plural — from prosecutors in Alberta was not to lay a charge and that decision was countermanded, effectively when it was sent to British Columbia for a decision on prosecution.

Nothing whatsoever had changed. The difficulty in deciding to prosecute this case was that you had the entire community left with the impression that there was something new or different or more substantial than there had been before and there wasn’t.

There was never additional evidence.

“Inaccurate, unflattering and disrespectful”

The way in which the case proceeded with the motive left a very inaccurate and unflattering and disrespectful picture that really shouldn’t have been put forward. It wasn’t accurate at all.

 On the decision to have Stobbe testify and lose last word to the jury
 It was pretty clear at the end of the Crown’s case that there really was not anything there that had not been anticipated, and at the end of the day I thought there was a big problem.
The tough decision, always, is when you have somebody who says ‘I didn’t do it,’ and wants to be able to advance that story you have to consider the tactical disadvantage that comes from then having to address the jury first and not have the final word.
Nothing to ‘tie him in’

What we wanted to establish all always was that what occurred here was a horrible tragedy — the most tragic thing that could of occurred.

Clearly whatever had happened it would naturally cause suspicion to be pointed at Mr. Stobbe.

But as you heard after an extraordinarily thorough investigation involving 100s of witnesses, 100s of wiretap conversations … there really was nothing whatsoever to tie him in and at the end of the day that clearly is the way the case ended.

There just was nothing there to tie him into this.

The RCMP and ‘tunnel vision’

As I said, there was a very thorough investigation. Most of the investigation did exactly what it should have done.

There was … some concern — bear in mind that we didn’t know what the case was until Mr. Stobbe was charged many years later.

It, I think it would be fair to say, that the DNA which seemed critical to us really wasn’t given much consideration.

And the fact of this bicycle issue really was important to them but at the time we looked at it seemed to be an absurd issue. It was clear that despite the fact the witnesses said they only saw one cyclist, there were clearly at least four different cyclists out there.

It was also clear … that the car (Rowbotham was found dead in) wasn’t there until after 1 a.m.


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Categories: alberta, General, unsolved homicide | No comments

An ominous number

- October 14th, 2011

Ivan Radocaj, left, in a dated picture. (The Great Canadian Talk Show Podcast)

When Rita Cushnie showed up at the RCMP detachment nearly four years ago and was interviewed in regards to the killing of John Radocaj, she had exactly $1.87 in her purse.

Over the four-year life of the criminal case, she reported to RCMP for bail management exactly 187 times, her lawyer, Mike Cook told Justice Colleen Suche last night.

It was a coincidence revealed just before Suche handed the 57-year-old a life sentence without parole for 25 years after a jury convicted her of first-degree murder and conspiracy to commit murder.

One-Eight-Seven: The cold irony for Cushnie, I guess, exists in how those digits have also been co-opted by the gangster underworld as a kind of shorthand for the crime of murder.

The slang use stems from the California Penal Code, where capital murder with malice falls under section 187 (a).

Winnipeg has already woken up to the news that Cushnie, her (former?) friend Melody Sanford and her son, Donald Richard were found guilty of the brutal murder of the man once known as “The Croatian Giant” in the wrestler’s ring.

I’m told it’s been a number of years since Radocaj — a large man standing 6’ 8” — ever stepped into the fray. Since the late ‘80’s.

As it is with the media, the ‘ former pro wrestler’ angle became a kind of thin trope to familiarize the public with the case and try to keep their interest (mea culpa).

But at the end of the day, ‘Big John’s’ murder had nothing to do with the faded glare of the spotlight or past athletic acclaim.

Instead, what I can surmise is that Radocaj was just a man who was duped into possibly believing he could have a second chance at love with a woman he had known for years who clearly now hated him for some still-unknown reason.

That’s the story of this trial that largely went untold.

As always, the “why” is elusive when it comes to crime and trials. For prosecutors, the “why” is seldom a question worth delving into, because that’s not really the job. The “who,” “when” and “how” are all that’s needed to secure a conviction, it seems.

It’s probably safe to say Radocaj’s belief in redemption cost him his life in the most brutal way.

A life lost for the promise of a few (and I do mean but a few) bucks and a TV set.

His estranged wife, Sanford and Richard (The orchestrator and executioner) each had the insight to recognize early on that they were culpable in the man’s death.

Their lawyers even admitted as much in closing arguments where they each said in open court manslaughter convictions were probably a foregone conclusion.

In Cushnie’s case, however, she had the most to lose, and obviously felt she was sucked into to something that spun out of any sort of control she may have had over things.

From @deanatwpgsun’s story about the verdict coming down:

Cushnie appeared to break down prior to the jury entering the courtroom. Once the verdict was delivered and the jury had left the room, her tears turned to rage.

“Look what you did to me you little bastard,” Cushnie said while looking at her son as sheriff’s officers moved to handcuff her. “You’re dead to me.”

As the public were escorted out of the gallery and Cushnie was taken into custody for the first time since her arrest, her anxiety spilled over.

“No!” the elderly and frail-looking woman exclaimed, apparently in sheer fright as the female Sheriff approached with the handcuffs.

“Stop it,” the Sheriff barked back at her.

To her credit, Cushnie was the only one of the trio who addressed Radocaj’s grieving mother directly prior to being sentenced:

“I didn’t encourage him,” she said, an obvious reference to her son.

“I feel for you as a mother.”

If her conviction is ultimately upheld (I’d expect a swift appeal) she won’t be eligible for parole until age 82.

—

Other notes:

At least two jurors — one in particular — were visibly distraught as their decision was read by the foreman last night. By my count, all but two stayed for the sentencing portion and reading of the victim impact statements.

From behind the jury room door upon their exit, loud sobbing could be heard.

Justice Suche declined a request from the defence to poll the individual jurors as to the unanimity of their decision.

It’s in her discretion to do so, and she stated she had no reason to question the verdict.

The decision sparked a short exchange between her and John McAmmond (Richard’s lawyer), who seemed adamant to put the discomfort of the two jurors on the record.

—

Just moments before the jury portion of the trial got underway roughly two weeks ago, the defence rose to raise a point.

Radocaj’s mother had come to court wearing a photo of her son and either a shirt or a sign stating “Justice for Ivan.”

Suche ordered her to cover it up prior to the jury seeing it, deeming it prejudicial.

—

I point readers of this blog to this curious story I wrote regarding the case dating back to May 2009.

Even at that time, Sanford was ready to accept responsibility for the conspiracy, possibly explaining the resigned expression she wore during much of the trial that I was able to witness.

From what ever could tell, no abuse of process argument went forward from her lawyers, or it was done in the background.

But we’ll never know what piece of evidence came in that changed the Crown’s position to charge her with the actual killing more than a year after the conspiracy charge was laid.

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There are two other accused in the case that have yet to deal with their charges.

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