Winnipeg Free Press

Winnipeg Free Press (Newspaper) - June 21, 2012, Winnipeg, Manitoba C M Y K PAGE A14 EDITORIALS WINNIPEG FREE PRESS, THURSDAY, JUNE 21, 2012 Freedom of Trade Liberty of Religion Equality of Civil Rights A 14 COMMENT EDITOR: Gerald Flood 697- 7269 gerald. flood@ freepress. mb. ca winnipegfreepress. com EDITORIAL I N cases of violence, one of the most difficult crimes to prove beyond a reasonable doubt can be murder. That's because murder involves determining the intent of the accused. In the case of first- degree murder, the Crown must also prove the homicide was planned and premeditated. Murder is the most serious crime, so there is a natural expectation the Crown will ensure defendants are prosecuted to the fullest extent of the law. A survey of homicide cases by the Free Press over the last seven years, however, would seem to suggest a high number of murder cases are being reduced to lesser offences, such as manslaughter, or ending in acquittals. Of 80 people charged with either first- or second- degree murder from 2007 to the present, only 31 were convicted of murder, with the rest found guilty of manslaughter ( 38), or acquitted ( 11). The statistics, however, are not evidence that people are literally getting away with murder, or that the Crown is lazy or incompetent. Without a case- bycase analysis, it is simply impossible to determine on the basis of raw numbers alone whether the dispositions were justified or not. Murder is rarely as simple as it sounds. For example, if someone shoots another person in the head, he or she would likely be charged with second- degree murder. But not necessarily. The defendant may have been too intoxicated or impaired in some other way to form the intent to kill, or there may have been extreme provocation. Alcohol and provocation are not absolute defences, but they can be mitigating factors in murder cases. It all depends on the evidence and on which facts can be proven. The Crown may not be overwhelmingly successful in securing convictions in seconddegree murder cases, which can be somewhat spontaneous homicides, but it has a good record for first- degree murder, where it obtained convictions against eight defendants out of 11 accused of the offence over the five- year period. As a rule, prosecutors will only reduce a second- degree murder charge to manslaughter if the evidence of intent is weak. Yet because so many murder charges are reduced to lesser offences, some critics say there should be a minimum sentence for manslaughter. The problem with mandatory minimum sentences in manslaughter cases, however, is that the offence can involve a very wide range of circumstances. Some people convicted of manslaughter have received 20- year sentences, because the facts warranted a stiff penalty, while others have received very light sentences that were equally warranted by the facts. An important question that is not on the justice system's radar in Canada is why voluntary intoxication is even considered a mitigating factor in violent crimes. If drunkenness truly diminishes responsibility, then why isn't it a defence in cases of drunk driving? Well, mainly because it is necessary to hold people responsible for intoxication in cases of impaired driving in the interest of public safety. Drinking and driving also shows a guilty mind because it involves basic intent, as opposed to the specific intent that is necessary for a murder conviction. In modern times, it is not unusual for charges of first- degree murder to be reduced to second degree, or for accused to be convicted of a lesser offence. Similarly, second- degree murder is often reduced following negotiations between the Crown and defence, or following a trial. It doesn't mean people are getting away with murder. The important issue is the Crown never discount a murder to speed up the courts. It's in the interest of justice and victims that a murder be fully prosecuted when the evidence allows, rather than treated like just another crime in the Criminal Code. J UDICIAL independence would be undermined if judges lived under the spectre that every complaint about them regardless of merit would be given a full public airing. So it is in the case of Associate Chief Justice Lori Douglas. While the Canadian Judicial Council's preliminary review panel did not forward Alex Chapman's sexual harassment complaint against Douglas to the public inquiry, they later decided to hear it anyway. None of the allegations, in our view, ought to be grounds for removal, but this particular decision may itself irretrievably damage her capacity to serve as a judge. Judges can only be removed if their conduct is " so manifestly and profoundly destructive... that public confidence would be... undermined." Complaints about judges are first reviewed by a preliminary panel and, only if it is in the public interest, is the complaint subject to a full inquiry. In 2010- 11, the council received 156 complaints, yet in its 40- year existence, only nine complaints have been referred to a full inquiry and only one judge has been removed. The Douglas inquiry is scheduled to hear witnesses throughout the summer. It will then decide whether the evidence supports any of the allegations and, if so, whether her conduct was " so manifestly and profoundly destructive" as to warrant removal. This hearing will be deeply humiliating for Douglas, her husband, Jack King, and Chapman. Anyone who cares to can find out details of Douglas's husband's unimaginable act of betrayal, their sexual practices and Chapman's criminal history. Chapman will face gruelling crossexamination about his motives. If the inquiry had not insisted, in effect, that independent counsel include the sexual harassment complaint despite its obvious weaknesses, most of this spectacle could have been avoided. The facts of this sad tale are well known. In 2003 King and Chapman settled a sexual harassment complaint for $ 25,000 - more than usually paid in such cases. Chapman made no complaint about Douglas. In 2010, Chapman gave sex photos of Douglas, which he had not destroyed, to media, and filed lawsuits totalling $ 67 million against King, Douglas and their former law firm and complaints with their respective professional bodies. Why did Chapman make allegations seven years after a fair and expeditious settlement of his complaint? Chapman asserts that he wanted to see justice done. But his lawsuits were withdrawn or summarily dismissed in late 2010. Bill Gange, King's lawyer, says that he received a phone call from Chapman's lawyer at that time, warning him that unless he dropped a motion to be reimbursed for some legal expenses for the dismissed lawsuit, photos of Douglas might reappear on the Internet. Gange refused. The day the motion was heard, the photos were back on the Internet. Independent counsel for the inquiry has now completed his investigation and his summary of four allegations was made public. The inquiry directed him to " forcefully" present " the strongest case possible in support of the allegations against the judge." He had no choice in the face of this ruling but to allege that Douglas participated in sexual harassment. The other three allegations are that publicly available sex photos of a judge compromises judicial integrity; that Douglas improperly answered a question on the judicial application form; and that Douglas failed to fully disclose facts to the independent counsel. This inquiry is the first where the most serious allegations - harassment and availability of sex photos - rest on the wrongdoing of others. Every other case was about either bad behaviour in the court room or misuse of judicial office. Douglas, who has now publicly responded through her lawyer, says she knew nothing of the activities of her husband in posting the photos or soliciting Chapman until the 2003 settlement. When she was considered for appointment as a judge, she did not hide the " open secret" of his behaviour and the photos, even though she had answered " no" to the question " is there anything in your past or present which could reflect negatively on yourself or the judiciary?" believing the Chapman matter had been fully settled and the photos destroyed. Some people record their sexual activity. We now know that senior members of the Manitoba bench and bar did not think that participation in making sex photos is reason enough to preclude a judicial appointment. We are troubled that a judge could be removed because she has been victimized by the egregious acts of others or has participated in a lawful activity even if that activity is disturbing to some. We fear that the Douglas inquiry have a chilling effect on the willingness of women - who know that sexual double standards still exist - to serve as judges. Lorna A. Turnbull is dean, faculty of law, University of Manitoba. Karen Busby is a professor of law, faculty of law, University of Manitoba. S HERRIDON - As far as landmarks go, it was as far off the beaten path as could be imagined. Rising out of the bush more than 80 kilometres down a gravel, dangerously winding and narrow road stood the Hotel Cambrian. A product of the gold rush of the 1920s and ' 30s, the four- storey building was about the only reminder of the miningfuelled boom days of Sherridon, a barely there town northeast of Flin Flon. The roughly 85 residents still here say " was" because earlier this month the grand hotel succumbed to fire, with the reverberations felt throughout the province. " The Hotel Cambrian was a community pillar for the town of Sherridon," area MLA Clarence Pettersen, who once toured the hotel, told the legislature last week. " The importance of historic buildings as links with our past cannot be overstated." Precise details on the origin of the Hotel Cambrian remain fuzzy. Some say it opened in the 1920s, others say the early 1930s. Legend has it that its construction was financed with mob money from Al Capone, but that's quite likely one of those fables folks perpetuated before Google told all. Some records indicate the Hotel Cambrian was completed in 1934 by George Shaw of Moose Jaw. Perhaps this is where the Capone story comes from, as Big Al is said to have hid out in tunnels in that Saskatchewan community. Whatever its genesis, the hotel, though long abandoned, was said to be the oldest building of consequence in northern Manitoba. A key figure in the history of the Cambrian was the late Walter Shmon, an ambitious trapper from Gilbert Plains. He moved to the Sherridon area in the 1930s, starting a mink ranch and mail delivery. In 1954, Shmon bought the hotel, even though Sherridon's raison d'�tre , the Sherritt Gordon copper mine, had closed two years earlier. Most of the town's buildings had been transported to accommodate another mine farther north in Lynn Lake. But Shmon was ever the optimist. He even possessed 30 mining claims in the Sherridon area, confident in a mining resurgence. He also loved Sherridon. Not only did he maintain a business that could not have been particularly lucrative at times, he also served as mayor for 14 years. After Sherritt Gordon, Sherridon retained something of a tourism base throughout the ' 50s, ' 60s, ' 70s and ' 80s. It was not until 1987 that mining finally returned when the Puffy Lake gold mine commenced production. New life had been breathed into Sherridon, but it would prove all too fleeting. Poor gold prices forced the closure of Puffy Lake in 1989. Shmon, even at his advanced age ( he was 95 when he died in 2009), continued to run the Cambrian. By the time it closed for good in the early 2000s, it had become a summer- only operation. By then the hotel had lost some of its lustre - and clientele. Its beer parlour had shut down in 1976 when, as Shmon once told The Opasquia Times in The Pas, " women's lib came in." In his old- fashioned way, he saw a co- ed bar as too much of a headache. The writing was on the wall for the landmark once Shmon put up the " closed" sign. In an effort to ensure its preservation, officials in Sherridon tried to have the Hotel Cambrian designated as a historical site, but to no avail. In time the once- proud hotel fell into disrepair, not to mention tax arrears. It no longer had electricity at the time of the early morning June 2 blaze, which is why police immediately suspected arson. Nick Benyk, Sherridon mayor and owner of the local general store, said residents worried the building had become a fire trap. " It's unfortunate to see it happen," he said of the blaze. " There's a lot of history there." Debi Hatch, chief of the tiny, rarely needed Sherridon fire department, called the blaze " very sad." She and her firefighters battled the blaze with verve but could not salvage the building, which was reduced to a pile of rubble. All that remained standing was a defiant brick chimney. It was an ironic end considering the building's twin hotel in The Pas - built at the same time and also called the Hotel Cambrian - met a similarly fiery fate in the 1970s. What is most unfortunate is that Sherridon's Hotel Cambrian had the potential to help the town reclaim its mining glory, as there has been talk of open- pit mining and a restart for at Puffy Lake. Alas, workers linked to those projects will have to find other accommodations. The Hotel Cambrian, once the towering jewel of the north, stands no more. Jonathon Naylor is editor of The Reminder newspaper in Flin Flon. jonathon_ naylor@ hotmail. com Murder by the book Humiliation of judge was avoidable Karen Busby and Lorna Turnbull JONATHON NAYLOR Gold- rush hotel reduced to ashes FRED GREENSLADE / WINNIPEG PRESS ARCHIVES The late Walter Shmon stands in front of Cambrian Hotel in the 1999 photo. The hotel was razed June 2. A_ 14_ J un- 21- 12_ FP_ 01. indd A14 6/ 20/ 12 5: 45: 27 PM ;