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Public review called for in tainted blood case

|Written By Jennifer McPhee

The tainted blood prosecution was redundant, needlessly expensive, and should be the subject of a public review, criminal defence lawyer Brian Greenspan tells Law Times.

“This was an investigation and prosecution that had the deepest pockets of any case I’ve been involved with,” says Brian Greenspan.

“There has to be a very public review of the expenditures in this trial, the cost to the public of the prosecution, and the way in which the prosecution was conducted,” says Greenspan. “This was an investigation and prosecution that had the deepest pockets of any case I’ve been involved with.”

Greenspan represented U.S. drug manufacturer Armour Pharmaceutical Co., one of five defendants exonerated by Ontario Superior Court Justice Mary Lou Benotto of criminal charges related to the tainted blood catastrophe of the mid-1980s that left thousands infected with HIV or hepatitis C.

“The events here were tragic,” wrote Benotto in her 63-page ruling in which she made an extremely rare finding, effectively declaring the five innocent. “ . . . To assign blame where none exists is to compound the tragedy,” she said.

Greenspan says defence lawyers are now considering bringing a cost application against the Crown on the basis that the defendants’ Charter rights were breached due to unreasonable delay caused during the course of the trial.

The costs could include out-of-pocket travel and accommodation-related expenses incurred by the defendants during their 17-month trial, and possibly also their legal costs.

The four individual defendants, all doctors, live outside Toronto and their personal expenses were not or might not be covered by the agencies responsible for paying their legal fees, he says.

“We’re not talking about pocket change,” says Greenspan. “One of the reasons that this whole issue is being considered is that this trial lasted far longer than many people thought was a reasonable length for the trial.”

No defence witnesses were called, and the five lead defence lawyers had never experienced such “unnecessarily prolix” examinations and re-examinations, says Greenspan.

The five cross-examiners combined almost never took more than one third of the length of the examination-in-chief, he says.

“[That’s] outside of what would be one’s normal experience,” he says. “I’m not saying that cross-examination always lasts as long as examination-in-chief, but if you have five cross-examiners, you are likely to come pretty close.”

“A lot of witnesses were called,” he adds. “A lot of them were superfluous, unnecessary, and extended the trial well beyond what was reasonable.”

The Crown and law enforcement investigators also flew “all over the world” to interview and then re-interview witnesses, and some witnesses were interviewed up to seven times, he says.

Some of the trips were necessary, but many were redundant and the Crown should have known the information sought was going to be repetitious and unhelpful, he says.

“If you counted up the time involved, the number of interviews, the re-interviews, the interviews by police followed by interviews by the prosecution and its team, and the pursuit of repetitious and redundant witnesses, you would be talking about hundreds of trips involving thousands of hours,” he says.

“One witness that comes to mind was interviewed once or twice in Baltimore, followed by once or twice in Croatia, followed by several days of interviews here,” he says. “It went beyond any reasonable effort at thoroughness.”

Dr. Roger Perrault, Dr. Donald Boucher, Dr. John Furesz, Dr. Michael Rodell, and Armour Pharmaceutical Co. were each acquitted of four counts of criminal negligence related to the distribution of a tainted blood-clotting product that infected four hemophiliacs with HIV in the mid-1980s.

They were also each acquitted of one count of common nuisance endangering the public, and Armour was additionally charged and acquitted of failing to report a product deficiency or suspected product deficiency under the Food and Drug Act.

Perrault is the Canadian Red Cross Society’s former national medical director. Furesz and Boucher are former Health Canada officials, and Rodell is a former Armour executive. Perrault faces six more criminal charges in a second trial in Hamilton.

In her judgment, Benotto found they were blameless.

“The allegations of criminal conduct on the part of these men and this corporation were not only unsupported by the evidence, they were disproved,” she wrote.

The charges were clearly ill advised, but the trial went ahead anyway because of political pressure, says lawyer Earl Levy, who represented Rodell. In the wake of Justice Horace Krever’s 1997 report on the tainted blood scandal, the hemophiliac community was expecting things to happen, including criminal convictions, and the government wanted to make sure it obtained convictions because it was under a microscope, says Levy.

Levy says one tip-off that the trial was politically motivated came just before the trial started, when one of the Crown’s experts submitted a report exonerating Perrault, Boucher, and Furesz. The Crown still decided to forge ahead with the trial, he says.

“Shortly before [the trial] started, they received their expert’s report that basically said you have no case against these people,” says Levy. “What that does is it says, ‘You don’t have a case to proceed with; why waste the public purse?’”

Many members of the hemophiliac community are now publicly expressing anger and disappointment with the verdict, and it was “virtually a predictable result,” says Levy.

Ministry of the Attorney General spokesperson Brendan Crawley says he can’t comment on the case because the appeal period is not over. But in response to claims that the Crown had no case, he points out that Benotto dismissed a defence application for a directed verdict of acquittal filed on behalf of the same three accused.

“The trial judge found that there was evidence presented at trial in which a properly instructed jury could convict three of the five accused,” says Crawley.

Levy says he’s uncertain that a public review of the prosecution would prevent similar cases from going forward. “When you have politically driven trials, I don’t think there’s any way to avoid it. I think it will always happen, so I don’t think you learn your lesson.”

But lawyer David Scott, who defended Furesz, says he thinks the public would be interested in “whether there was value for the investment.

“I can only speculate as to the value, but it must be millions,” he says. “When the judge concludes that all the accused were exonerated and the charges, in effect, should never have been laid, I would be surprised if somebody wasn’t asking the questions, how much did it cost, and how did it happen?”

One way to avoid similar situations in the future is to start with a police investigation, instead of a public inquiry, if there’s any possibility of criminal conduct, says Scott.

Public inquiries incite public compassion, and the public then puts pressure on government to lay charges, says Scott.

“Instead of making a decision based on the evidence that charges are not warranted, frequently charges are laid to assuage public outcry,” he says.

When the public sees that criminal charges have been laid, it assumes the defendants are criminals, says Scott. “And when the court concludes they are not criminals, the public says the justice system doesn’t work. That’s exactly what happened here.”

“That’s what troubles me, more than anything, as a lawyer,” he says. “That this very carefully developed decision by a very conscientious judge is called into question by people who were, in fact, induced into thinking that this was an appropriate case for criminal proceedings.”

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