A Crown attorney’s failure to disclose his close friendship with a trial judge was a miscarriage of justice that has resulted in a new murder trial for a Windsor man, the Ontario Court of Appeal ruled Wednesday.
Andrew Cowan was convicted of second-degree murder in August 2017 after a jury trial in Windsor, Ont., presided over by Superior Court Justice Kelly Gorman.
Cowan’s lawyers, Toronto’s James Lockyer and Gabriel Gross-Stein, appealed his conviction to the Ontario Court of Appeal, arguing among the five grounds of appeal that there was a reasonable apprehension that the trial judge was biased and this resulted in a miscarriage of justice.
The Appellate court agreed after receiving “fresh evidence” outlining “troubling conduct in this case.”
At the trial’s outset, Crown prosecutor Tom Meehan disclosed his friendship with the judge to the defence but did not also disclose that he and the judge had previously agreed in 2016 not to appear on the same case, nor did he reveal he had attempted to have the case reassigned to another judge.
(Meehan is not identified in the Court of Appeal ruling, but is named in an earlier arbitrator’s ruling over his conduct in the same incident.)
The prosecutor’s failure to disclose indicates a “real risk” that the accused was “stepping onto a tilted field,” Justice James MacPherson wrote on behalf of a three-judge panel. “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.”
Within minutes of the jury’s verdict, Gorman contacted Meehan to go for a drink. The case, however, was not over, as sentencing was put over for a future date.
Gorman then met Meehan, a Crown articling student and a senior police officer at a nearby restaurant for about an hour. Defence counsel was not invited.
After about an hour, the get-together broke up and Meehan asked Gorman to join him for dinner. “The trial judge accepted and they went to a different restaurant where they had dinner that lasted for about two hours,” the appeal court decision said.
“Whether the trial judge was actually biased or not is not the issue,” MacPherson wrote.
“The mere appearance of bias is enough to satisfy the test. In this case, it is difficult to imagine how the ‘reasonable and right-minded person’ would dispel the spectre of bias where the trial judge shares drinks and a meal with the prosecution team minutes after the jury entered a conviction on a very serious criminal charge.”
The articling student, Lerren Ducharme, who attended the post-verdict drinks gathering, was cross-examined about a statement she provided to the court.
“I knew that there was something odd about the circumstances for sure because the case had not been completed. And I also knew that the trial judge would be determining the parole ineligibility of the accused. So that definitely was uncomfortable and felt wrong for me.”
Cowan stood trial for first-degree murder but was found guilty of second-degree murder for deliberately driving his car off the road, killing his best friend. The Crown argued he was depressed and was trying to kill them both, the defence argued the deceased died as the result of a suicide pact and should therefore be acquitted.
