Crown speeds up process in blood scandal

Defence protests bypassing of preliminary hearing
Mark Kennedy
 
CanWest News Service
Wednesday, December 24, 2003

OTTAWA - In a rare move, the criminal proceedings against those
charged in Canada's tainted-blood scandal have suddenly been put on a
fast track.

Michael Bryant, the Ontario Attorney-General, has granted a request
from Crown attorneys to send the cases straight to a trial, bypassing
the normal preliminary hearings that could have significantly delayed
the cases.

For years, tainted-blood victims have been crying for justice.
Yesterday, one of their spokesmen praised the decision to go directly
to trial, a legal manoeuvre known as a direct indictment.

"The Crown has shown a great deal of strength and determination to
pursue this," said Mike McCarthy, a hepatitis C victim who is a
member of the Canadian Hemophilia Society.

"If there was a delay, many people who are in the final stages of
their disease would not be alive to see the outcome. This will
obviously reassure us that justice is moving quicker than it did in
the last 20 years."

Normally, an accused gets the chance to opt for a preliminary
hearing, where the Crown has to present sufficient evidence to
convince a judge the case should go to trial. At the preliminary
hearing, defence lawyers can cross-examine witnesses.

Yesterday, lawyers for the accused in the tainted-blood cases said
the Attorney-General's decision denies their clients a basic right.

Ottawa lawyer Peter Doody, representing former Health Canada official
John Furesz, said defence counsels asked the Crown why a direct
indictment was necessary, but were not given an answer.

"The denial of the preliminary inquiry will remove one of the
protections which an accused person has in the criminal justice
system -- that is, to have a review of the evidence intended to be
presented by the Crown."

Lawyer Michael Edelson, representing the Canadian Red Cross Society,
said his client should have had the right to decide whether to have a
preliminary hearing or go straight to trial.

"We have a statutory right to a preliminary hearing," he said. "They
took years to investigate this thing and now they're saying 'Let's
hurry up. Get yourselves ready very quickly to go to trial.' "

Mr. Edelson said that even with the fast track, he doubts the trial
will start in 2004 because the Red Cross must have the time to pore
over 1,900 banker's boxes of documentary evidence supplied to it by
the Crown.

In 1997, a federally commissioned inquiry led by Mr. Justice Horace
Krever blasted a range of players -- including the federal
government, the provinces and the Red Cross -- for mistakes that left
about 1,200 Canadians infected with blood-borne HIV and tens of
thousands contaminated with hepatitis C.

That report sparked a five-year RCMP investigation, which produced
reams of evidence from documents and witnesses prepared to testify.
This resulted in the Mounties laying criminal charges in November of
2002.

Among those charged were: Two former federal officials in Health
Canada (Mr. Furesz and Wark Boucher); a former senior member of the
Canadian Red Cross (Roger Perrault); the Red Cross itself; Armour
Pharmaceutical Co., a U.S. firm that produced blood products, and one
of its former senior executives (Michael Rodell).

For the past year, the cases -- which have been split into two
distinct cases being heard in Toronto and Hamilton, Ont. -- have made
their way through the courts slowly. The Crown began disclosing its
evidence to defence lawyers for the accused. By the time court
appearances took place last June, more than 95% of the "investigative
file" was disclosed to the defence lawyers.

At that time, Crown counsel applied to the Attorney-General to invoke
Section 577 of the Criminal Code and invoke a direct indictment, also
sometimes called a preferred indictment.

In a recent posting on its Web site, the RCMP noted it is not an
ordinary move.

"This power is an extraordinary one, and is only granted in
exceptional circumstances where the absence of a preliminary hearing
will not severely prejudice the accused's ability to have a fair
trial, and the public interest requires a departure from the usual
procedure."

Last Friday, Mr. Bryant, who became Attorney-General after the
Liberals' came to power in October, signed the direct indictment. As
a result, the charges will go directly to trial in the Superior Court
instead of a preliminary hearing in the Ontario Court of Justice.

© National Post 2003