MORREY TRIAL
Police balked at disclosure in murder case
The Kristy Morrey murder trial collapsed after a shocking litany of RCMP runarounds that caused one officer to lawyer up and others to discuss bringing in federal lawyers to prevent the provincial prosecutor from disclosing some evidence.
Two senior Mounties complained in text messages released by the B.C. Supreme Court that Crown counsel Gordon Baines was “weak” and that, if he kept agreeing to defence requests for material, they should get a Justice Department lawyer to hamper his efforts. At one point, RCMP Staff Sgt. Laura Livingstone said in one of the texts: “Crown thinks they control all docs.
“They don’t.”
Baines later fell ill and was replaced on Oct. 26 by David Fitzsimmons as the Crown prosecutor in the first-degree murder trial of Larry Darling in the 2006 death of Morrey.
Although cleared in the original investigation, Darling was targeted by the RCMP in an eight-month Mr. Big sting that led to him being charged with firstdegree murder in September 2015.
He spent two years in jail awaiting trial. Proceedings began in August 2017. However, the Crown directed a stay of proceedings on June 13, indicating it had determined the evidentiary standard could not be met, and refusing to elaborate.
On Dec. 22, after two months of squabbling over the disclosure of evidence to the defence, B.C. Supreme Court Justice Douglas Thompson issued a sweeping order that required officers to provide evidence of their disclosure efforts.
As a result, Fitzsimmons sent a letter to Darling ’s defence team on March 28 admitting that Staff Sgt. Greg Mainman, leader of the RCMP team probing the case from October 2014 to January 2016, was himself being investigated.
Fitzsimmons revealed in that letter that Mainman may have filed a false affidavit and that he had hired a personal lawyer during the trial when his disclosure was questioned, raising complicated legal problems that were outlined in submissions by the defence. According to that letter, Mainman disclosed an accordion file of material in February, even though he had earlier said he had already handed over everything.
The Supreme Court of Canada has repeatedly emphasized the constitution demands disclosure by police in criminal prosecutions because it is fundamental to a defendant’s ability to answer a criminal charge and is essential to preventing wrongful convictions.
But Mainman was not the only officer with concerns about disclosure as revealed in text exchanges between Sgt. Zeeba Popat, the primary investigator, and Livingstone, who has overseen the Morrey investigation since 2013 except when she was on secondment and Mainman took over.
A 25-year veteran police officer, Livingstone has been Acting Senior Investigative Officer/ Monitoring Officer with the E Division HQ Major Crime Section since Nov. 2016.
After Postmedia applied last month for access to court records, Livingstone gave sworn evidence to the court by affidavit in which she said that the materials should remain secret because “disclosure would compromise the nature and extent of the ongoing criminal investigation by revealing information that is currently not known to the public.”
She maintained the investigation, which involved more than 60 undercover operatives, was ongoing in spite of the June stay of proceedings: “Members of the investigative team have met with Ms. Morrey’s family and advised them the RCMP will continue to investigate her death.”
Livingstone added in her affidavit: “At this time, Mr. Darling is the only suspect in Ms. Morrey’s murder.”
She wanted her affidavit as well as the files sought by Postmedia sealed for a year until June 12, 2019, when the window closed for reviving charges after a stay.
Justice Thompson said, in giving Postmedia News access to court files Aug. 3, that new charges were “very unlikely.” He was unimpressed by Livingstone’s affidavit and ordered it released.
“In a sense, the RCMP are trying to shut the stable door after the horse has bolted,” he said. “The evidence and arguments relied upon by the RCMP are not cogent or convincing. They amount, at most, to generalized assertions of possible disadvantage.”
Justice Thompson also released documents showing Livingstone and others were unhappy with the disclosure required in the case.
Text messages between Livingstone and Popat provided to the court revealed problems arose shortly after the cold-case trial began last August and, by September, police were openly battling Baines.
On Sept. 21, Popat wrote to Livingstone: “I told Crown yesterday that I think Defence is pulling fast ones on him and he needs to not be so willing to let that happen ... in a nice way.”
Livingstone responded: “Yes. Did you see the requests around the polygraph stuff. Just rubbish.”
The following day, Sept. 22, Livingstone sent Popat the text: “Defence counsel must have heard us last night judging by his email. I will get the facts Monday, think about what I (we) want to say and then give LaBossier (sic, regional Crown counsel John Labossiere) a call.”
A month later, with Popat taking the stand, Livingstone advised her on Oct. 20: “Ignore the histrionics of defence. Everyone (except (prosecutor) Gord (Baines) it seems) knows he does it.”
Defence lawyer Kevin McCullough scoffed at the texts and told Postmedia the documents the officers didn’t want to disclose were ordered produced and the disclosure debate resulted in a ruling that “hammered the RCMP and Crown, the RCMP weren’t getting it. The texts are a transparent reality of just how significant the disconnect is.”
He added that the police reluctance with disclosure obligations and their attitude as evidenced in the texts was a major thrust of his application for a stay.
The conflict between the RCMP and Baines reached a climax when Livingstone asserted in a text that the “Crown thinks they control all docs. They don’t ... We shouldn’t disclose and if crown doesn’t agree then we go to doj because they represent the rcmp interests.”
After hearing arguments about the disclosure disagreements, Justice Thompson issued his order of Dec. 22 that required each RCMP officer “assigned primary responsibility for disclosure” to swear he or she had made “all feasible efforts” to make complete disclosure of material pertaining to the investigation to the Crown.
On Feb. 19, Livingstone said in a memo Justice Thompson also ordered released that Mainman reported having “sought independent counsel for himself from David Butcher.”
According to court records, she sent Mainman an email Feb. 26 telling him he had “a duty to disclose Morrey information to Crown counsel. That he could not provide information to BUTCHER and then claim solicitor/client privilege.”
On March 28, Fitzsimmons, after informing the defence of the investigation into Mainman, sent an email to Livingstone: “Kevin (McCullough) has been advised and is bouncing off the walls somewhere . ... Enjoy the weekend and the beer. I need one I think.”
Livingstone sent an FYI email to her fellow officers, ending with: “Frustrating.”
On May 1, Fitzsimmons sent another letter to the defence saying he had learned in April that after an alleged meeting with Deputy Regional Crown Counsel David Kidd sometime after Baines fell ill, the victim’s family said they could no longer find and may have destroyed evidence that had only recently come to light.
Asked what action the RCMP has taken in wake of the stay of proceedings in the case, RCMP senior communications officer Staff Sgt. Annie Linteau said in an email:
“The status of the code of conduct investigation into the member (Mainman) is active and ongoing. The member has been reassigned to administrative duties and his duty status is continuously assessed . ... The RCMP is reviewing the decision (to stay the charge) and the investigation remains open.”
The B.C. Prosecution Service said: “The decision (to stay the charge) was not related to the conduct of the Crown.”
It refused to answer subsequent questions, including the current status of Kidd saying only that it has asked senior prosecutor Robert Wright, who gave legal advice to Mainman during the investigation, to conduct an internal review.
In releasing the documents, Justice Thompson said: “I agree that the public ought not to be shielded from being able to learn about what may have led to the Crown’s decision to direct a stay of proceedings, and that public servants ought not to be shielded from scrutiny in a case such as this.”
None of the allegations described in the records ordered released by the court have been proven.