Shadow hangs over case of man convicted of murder

It is Kafkaesque: A man with a catastrophic brain injury, the fairness of whose criminal trial is very much up for grabs, was Tuesday led away to a Windsor, Ont., prison to begin serving his mandatory life sentence for second-degree murder.

And even though a senior Crown prosecutor has acknowledged “an understandable complaint” about the perception of trial fairness, the man must now remain in prison — in protective custody, and with his sheaf of medications with him — until his appeal lawyers can file a request for bail pending the hearing of the appeal.

The man is Andrew Cowan, who on Oct. 21, 2012, was behind the wheel of a pickup truck that drove into the second floor of a commercial building in Leamington.

Cowan’s friend, Edward Witt, was killed in the crash.

Cowan survived, but with such damage — he can’t properly interpret questions, adopts things others tell him as if they were his own memories and is on heavy drugs — that his lawyer, Patrick Ducharme, said it would have been “inhumane” to have him testify and face cross-examination.

The lawyer argued that the crash was in fact a genuine suicide pact between two friends who had been drinking and gambling and who had decided to end it all.

Ducharme wanted to call Saadia Ahmad, a doctor who has been treating Cowan for months, as a witness to explain his client’s inability to testify.

Ontario Superior Court Judge Kelly Gorman refused unless Ducharme promised to put Cowan in the stand. Ducharme couldn’t bring himself to do that.

But that is just one aspect of the huge shadow now hanging over Cowan’s trial.

Shortly after the jury convicted Cowan on Aug. 23, Ducharme was contacted by the regional director of Crown operations, Lowell Hunking, and told that an investigation was underway into the conduct of Gorman and the trial prosecutor, Thomas Meehan.

A student articling with the prosecutor’s office had reported to her boss that the night of the verdict, Gorman and Meehan had gone out for celebratory drinks with her and the officer in charge of the case.

The four were together for about an hour, discussed the just-completed case and Cowan’s conviction, and, according to the student, the judge was keenly alert to the appearance of impropriety, saying more than once “As long as Mr. Ducharme doesn’t walk in…” to the bar and see them.

Regional Senior Judge Bruce Thomas then appointed Superior Court Judge Renee Pomerance to look into the circumstances. She held a closed-door meeting with the lawyers at the courthouse.

There, Meehan told Pomerance that he and Gorman met up later, after the student and the officer had gone, for dinner and a bottle of wine at a restaurant in Caesars Casino.

He told Pomerance that he and the judge are “close friends,” that he regularly attends family events at her home, and that for the past two years, he “usually” chooses not to work with Gorman due to their close relationship. As he put it, “We’d agreed not to appear in front of each other…” after an earlier case where the verdict was overturned on appeal.

Meehan also hinted that it was Gorman who instigated the night out; it appeared that the two had been texting one another.

Ducharme was outraged, not only by the belated disclosure of the close ties between the two, but also by the cloud it cast over some of the judge’s decisions during the trial.

As he put it in his unsuccessful application for a mistrial earlier this week, “There is now a question of whether the judge’s decisions favoured the Crown because the relationship between the judge and the Crown was far more than what the Crown represented it to be.”

The veteran lawyer was also incensed because the only hint he’d ever been given about the pair’s relationship came during a pre-trial teleconference, when Meehan disclosed a friendship with the judge. Ducharme took this to be a typical casual relationship, confined to lawyers’ social events.

Then, on the first day of trial, with the jury already selected, Meehan asked Ducharme to agree he’d been told the two were friends — a position Ducharme said he should never have been put in.

Gorman denied the mistrial application heard on Monday, during which Ducharme called Meehan “a stranger to the truth” and asked the judge a number of questions to explain her own conduct that night.

Meehan was removed from the case when the student’s report became known. His replacement, Michael Carnegie, said the matter should be decided by the appeal court. Gorman agreed.

It is unclear if Judge Pomerance’s investigation is finished.

Two of Cowan’s aunts — also his caregivers since the crash — have complained to the Canadian Judicial Council about Gorman’s behaviour.

Norman Sabourin, the CJC’s executive director, confirms the council has received the complaint, but said the matter is in the early stages of review and that it has been referred to the chair of the judicial conduct committee.

The two aunts were deeply offended at the student’s report and Meehan’s acknowledgment that he and the judge had been joking about the trial that night.

“We say that alcohol is no excuse for their despicable behaviour … Andrew trusted the judge to be independent and fair,” the aunts wrote.

They were in court as their 45-year-old nephew was led away Tuesday.

“They’re really worried,” Ducharme said, fearing Cowan’s injuries will render him vulnerable in prison.

DAX MELMER / POSTMEDIA NEWS Patrick Ducharme, defence lawyer for Andrew Cowan, who killed his friend Edward Witt in 2012 when he crashed his pickup truck speaks to media Tuesday.