Senior Crown ordered to recuse weeks after conduct questioned at COA

Mark Huyser-Wierenga removed from criminal case by judge for showing ‘animus’ to defendant and ‘inappropriate hostility’ to opposing counsel

A judge has ordered a senior Edmonton Crown prosecutor to recuse himself from conducting a criminal matter just weeks after his conduct formed the basis for the appeal in a high-profile rape case.

Alberta Provincial Court Justice F. K. MacDonald ordered Crown counsel Mark Huyser-Wierenga off the case of William Boudreau after finding he displayed “inappropriate hostility” towards opposing counsel and showed “animus” towards the defendant himself. Boudreau wanted proceedings stayed altogether, but the judge found the prosecutor’s removal would suffice.

“The record before me establishes that Mr. Huyser-Wierenga has conducted himself recklessly or with unacceptable negligence. The integrity of the administration of justice requires his removal as counsel from this case. I am satisfied that a reasonably informed member of the public would conclude likewise,” the judge wrote in the June 22 decision.

The ruling comes just weeks after Edmonton club promoter Matthew McKnight placed Huyser-Wierenga’s conduct during his widely-covered trial at the heart of an appeal of his conviction by a jury on five counts of sexual assault, for which he received eight years in jail.

According to an Edmonton Journal report on the appeal hearing, McKnight’s counsel argued that Huyser-Wierenga, who has more than 30 years of experience as a Crown prosecutor, “ignored or forgot” his duty to act in an “even-handed” way.

In addition, the newspaper quotes the submissions of McKnight’s lawyer Peter Sankoff, who wrote that Huyser-Wierenga effectively became “the trial’s 38th and most important witness” after counting 70 instances of alleged improper conduct that included the use of inflammatory language and prejudicial lines of questioning.   

In responding submissions, the Crown backed Huyser-Wierenga, arguing that the trial was fair and that he was “entitled and indeed expected to conduct vigorous cross-examination” of McKnight, reminding the appeal panel that “trials are not tea parties.”

Although it acknowledged two occasions of improper questioning, the Crown argued that the trial judge properly instructed the jury to disregard the comments in question, the Journal reports.

The Crown’s own appeal in the case seeks more jail time for McKnight, claiming that the sentence handed down was “demonstrably unfit.” The appeal court has reserved its decision.

In Boudreau, proceedings in the domestic violence case went off the rails in the hours before the defendant’s scheduled trial on several counts, including intimidation, simple assault and sexual assault, according to Justice MacDonald’s ruling.

The judgement says Huyser-Wierenga called Boudreau’s lawyer Ellen Sutherland into an ante room on the day of the trial, revealing his intent to apply for an adjournment and bail revocation after he learned that Boudreau had allegedly been in touch via text message – in breach of his release conditions – with the complainant, who was now fearful and unwilling to proceed.

One message, sent on the morning of the trial, was arguably an attempt to obstruct justice, the judge noted: “the fucker is going to run it with or without you. You don’t need to be here.” 

Sutherland’s account of the meeting described Huyser-Wierenga as “hostile and aggressive” as he relayed messages he and his assistant had recently seen on the complainant’s phone. The decision says the messages referred to plea negotiations and described the prosecutor, who is visually impaired and carries a cane, as a “goof”, and “blind muhfucker.” During the meeting, Huyser-Wierenga repeatedly said he was annoyed with Boudreau and told Sutherland: “your client needs to learn that he can’t fuck with my witnesses.”

In the ruling, Justice MacDonald wrote that anyone could reasonably feel “angry and indignant” on behalf of the complainant in these circumstances.  

“However, Mr. Huyser-Wierenga is not the man on the street. Mr. Huyser-Wierenga is one of the most senior of the Crown prosecutors practicing in Edmonton General Prosecutions,” the judge wrote. “I doubt this is the first time he has been referred to disparagingly by an accused in a criminal case. His manner of address to Ms. Sutherland, who was called to the Bar in 2020, was discourteous and unprofessional.  The irony is not lost on me that, in service to the welfare of the female complainant, Mr. Huyser-Wierenga visited his outrage on a junior and female member of the bar.”

Still, on its own, this behaviour was not enough to justify an inference of bias, Justice MacDonald added. However, concerns over disclosure and Huyser-Wierenga’s apparent conflict of interest tipped the case over the edge for the judge, who concluded there was evidence he blurred the lines between prosecutor and investigator in his meeting with the complainant.

At the hearing of the adjournment application, following which Boudreau was arrested, the decision says Huyser-Wierenga displayed a lack of objectivity by repeatedly offering to testify. Eventually, the judge wrote he “essentially gave evidence” of his interview with the complainant through lengthy and leading questioning of his assistant, who was also present.

“There is a realistic risk that Mr. Huyser-Wierenga could be a witness. Should he continue as counsel, this case is a mistrial waiting to happen,” Justice MacDonald wrote.

Although there were ample grounds for the adjournment and warrant applications, the judge also expressed concern the prosecutor had overstated the case against Boudreau before the court.

“The misrepresentation by Mr. Huyser-Wierenga of the nature and kind of contact between the complainant and the accused in the adjournment and warrant hearing give rise to a reasonable apprehension of bias,” Justice MacDonald concluded.

In a statement, Sutherland told Court Report Canada this was a case in which a senior prosecutor “weaponized their seniority and power in order to intimidate a young female defence lawyer.” 

“The women in criminal law face significant barriers in their practice which need not be compounded by a hostile Prosecutor. It is my hope that this Prosecutor reflects upon the comments made by this court and carefully reconsiders the treatment of his professional colleagues, especially the junior female members of the Alberta Bar,” she said.

“Given the paucity of successful recusal applications, I would not be surprised if the Crown moved to appeal this decision. To do so would, however, be a clear indication that the Crown Prosecution of Alberta supports the ‘significant professional misconduct’ of this prosecutor and signals to junior counsel that the mistreatment of opposing counsel is acceptable practice,” Sutherland added.

Criminal lawyer Kristofer Advent, who argued the recusal application with Sutherland, noted that Crown prosecutors are entrusted with significant power and discretion.

“We should hold our public servants to a high standard to ensure fairness in our justice system,” he says. “The decision in this case strongly affirmed this principle and clearly recognized the concerning issues in this particular case.”

Carla Jones, a spokesperson for Alberta’s Ministry of Justice and Solicitor General, said they were “aware of the situation and are investigating next steps.”

“However, as the matter is still before the courts we are unable to comment any further,” she added.

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