Could Crown and Defence Face Charges?
By Susan Clairmont
A veteran Crown attorney and a high profile defence lawyer could possibly face criminal charges for cutting a deal that let a priest escape the country rather than face sex abuse charges. However Dean Paquette, the priest's council, says there is no basis for such charges against him or the Crown. The Ministry of the Attorney General will not say if its probe into the controversial handling of the case involving Reverend Jose Silva involves a criminal investigation. But buzz around the John Sopinka Courthouse where the deal was brokered is that technically, criminal charges could be laid against Paquette and assistant Crown attorney Carey Lee. The reasoning goes like this: failing to appear in court is a criminal offence. Silva failed to appear in court because Lee and Paquette worked together to arrange for him to return to Brazil, where he is from, even though he was facing charges related to the alleged sexual assault of an 18-year-old man who says he was groped. Under Section 21 of the Criminal Code of Canada, "every one is a party to an offence who actually commits it; does or omits to do anything for the purpose of aiding any person to commit it; or abets a person in committing it." The section goes on to say "where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence." And finally, it also applies "where a person counsels another person to be a party to an offence" that is later committed by that person. Paquette applied for a bail variance, which Lee consented to, enabling Silva to get his passport back after surrendering it to police as part of his bail conditions. Lee also arranged with the Canada Border Services Agency to allow Silva to fly out of Pearson Airport five days before he was to appear in court on his charge. When Silva failed to appear in court on May 9, the justice of the peace issued a Canada-wide warrant for his arrest. Should the priest ever return to the country, he will be arrested to face his counts of sex assault and failing to appear. Paquette says he is not aware of any criminal investigation concerning the deal he made with the Crown. Nor is he concerned he may have broken the law. Paquette says the deal he originally wanted to strike with Lee was to have the charges against his client withdrawn. The Crown refused and wanted instead for Silva to leave the country and have a warrant issued. "So that was at the request of a public official," says Paquette. "To achieve what he thought was an appropriate result. "How could I possibly be prosecuted for that when I was asked to do it by the Crown attorney?" Paquette adds he does not believe Lee acted criminally because "there was no bad faith in Mr. Lee's behaviour." The Spectator has made extensive efforts to reach Lee for comment. He is on a six-month sabbatical and has not responded to interview requests. Paquette has said previously the allegations against his client were at the low end of the sexual assault spectrum and there was a good chance he would not be convicted if he went to trial. The Ministry of the Attorney General has said it is reviewing the Silva deal. Asked if the review involves a criminal investigation, spokesperson Brendan Crawley would only say "the ministry does not comment on human resource or personal matters relating to staff." Hamilton Police and the Ontario Provincial Police say they are not conducting an investigation into the deal. Even if the AG's office or police have not initiated a criminal investigation, members of the public can make a complaint against Crown attorneys, says Crawley. It is done through the ministry's criminal law division with complaints made in writing to the local Crown attorney who, in Hamilton, is Tim Power. Meanwhile, the bottom line for Silva is that nothing is going to change. No matter what the result of the ministry probe is or whether or not there is ever a criminal investigation, Silva's get-out-of-town-by-sundown deal cannot be rescinded. "It is important to note that the resolution of the case cannot be revisited, no matter what the finding," says Crawley. Contact: sclairmont@thespec.com
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