"The Power of One"

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  • Dead Men Can't Talk

    Today is the 6th month anniversary of the murder of Brian Ludwig on the 26th August 2012. In the following narrative, when I talk about “victim” I am referring only to Brian. I am nothing but the survivor of a homicide victim.

    Having been involved in the aftermath of murder and our court of the Queen’s Bench, I am not getting a sense of “counter-balancing” justice from within the Canadian criminal judicial system. Quite the opposite. There is no crusader for the murdered individual. The homicide victim has no voice or at best a very weak voice within our system.

    On the 20th February 2013, a 5th closed court date for the accused has come and gone. Another court date to discuss “plea”; another one that he didn’t have to attend. Another date behind closed doors attended only by the finest of legal minds; the defence attorney and the crown prosecutor.

    I wonder who the strongest legal mind of the two attorneys is. A weak Crown Prosecutor is a Police Detective’s worst nightmare in a homicide case.

    The defence Attorney is being paid by the accused; the accused is being consulted and participating in the decisions being made on his behalf; this attorney thinks outside the box.

    In Alberta law: “The role of the prosecutor within the justice system is commented on in an often cited quote of Justice Rand of the Supreme Court of Canada:

    "It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings."

    - Boucher v. R. [1955] S.C.R. 16 at 23

    "The prosecutor is not the lawyer for the police or for victims or complainants. The prosecutor is the representative of the "state" - an organization which includes the accused among its members. In Canadian law, crimes are dealt with as wrongs against society as a whole, not simply as private matters between two people, even though individuals often suffer injury or damage [or death]. A Crown prosecutor is therefore not the victim's lawyer.”1

    In Canadian homicide cases, the crown prosecutor is a civil servant paid by the Crown and does not consult with the victim nor does the victim participate in any of the decisions being made on his/her behalf. The prosecutor’s decisions are governed by the law. This attorney thinks inside the box.

    But what am I thinking – Dead Men Can’t Talk anyway.

    The liaison office of the Crown Prosecuting Attorney faithfully makes the call after every court date to inform me nothing has happened (that I need to know) in the “Plea” process; this time the case is again waylaid to a new date one month in the future, to the 20th March 2013. Five court meetings and still no plea has been entered by the defence and no preliminary hearing date set.

    What happens behind closed doors stays behind closed doors.

    I do understand and agree that all individuals charged with a homicide in our judicial system are innocent until proven guilty; this system is a good one and should stay that way.

    Unfortunately, the horrible events of Sunday, 26th August 2012 have thrust me and my family into a front row seat of the proceedings of our criminal justice system. I think I can speak with a little authority that the homicide victim is lost within this system. According to the official website for the Alberta Justice and Solicitors General, the state “includes the accused among its members“; in the above closed door meetings, there are two lawyers working for the accused. The strongest one will win. The weakest one will also win. The victim has very few if any rights and will be the loser. The survivors of the homicide victim also have no rights or representation in a homicide case.

    I have to say the individuals from the liaison office are extremely nice, courteous and sensitive when speaking to them. The phone line is always open to us to call them. But we are not being consulted in the “plea” process - in anything actually. There seems to be far more consideration, attention and rights given to the offender than to the homicide victim.

    The superficial call made each month from the liaison office is nothing more than a pretense to mollify family members of the victim and to pretend that they in some way have representation in the criminal justice system and a voice in what happens to the murderer of their loved one in court. If I ask direct questions about the case, I am told nothing. They are discursive.

    The question: In Alberta, do Crown Prosecutors “Plea Bargain”?

    “Alberta Justice Policy requires that prosecutors should not reduce or withdraw charges solely to avoid a trial. However, there is a public interest in resolving matters without the expense of time and resources involved in a trial, and the sparing of inconvenience to victims and witnesses. For this reason, prosecutors are expected to discuss with defence counsel the possibility of guilty pleas to the original charge or to other charges.

    The prosecutor must consider whether there is sufficient evidence to prove all of the charges and whether it is in the public interest to proceed with all of the charges. When there are several charges stemming from a single incident, it is often appropriate to withdraw surplus charges, so long as the sentencing judge will have a complete understanding of the wrongful conduct that could be proved.”1

    This is the answer that I found on the Alberta Justice web-site and it appears as if the answer is an irresolute “no”. However, plea bargaining in Canada has become an accepted part of the criminal justice system although lawyers and judges are reluctant to admit it.

    The argument for plea bargaining is that it benefits society as a whole. On the other hand, there are many who argue that plea bargaining with an accused charged with a homicide does not serve justice.

    But then again – Dead Men Can’t Talk.

    The way I see it, it wasn’t society who killed Brian, it was one man. And I don’t see how society will be benefited by our justice system being lenient on a criminal by “resolving matters without the expense of time and resources involved in a trial, and the sparing of inconvenience to victims.” It is very inconvenient to be murdered. One half of Brian’s life was taken away by one act of senseless violence. It’s true that Brian is no longer a member of our society, but he still deserves respect and recognition for his contributions to it.

    Somehow, the man who killed him needs to realize the impact of his violent act. Neither he nor his near relatives have stepped forward to apologise to us, to Brian's partner and children for the loss that he has created.

    I know that had my son done this, the very next day I would have been in front of the news with a statement of recognition and apology.

    That’s right – Dead Men Can’t Talk – but I can and I will.

    1http://justice.alberta.ca/programs_services/about_us/Pages/prosecutors_roles.aspx

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