Suspension halved for Crown Attorney who had dinner and drinks with murder trial judge
Arbitrator finds Windsor prosecutor Thomas Meehan’s 10-day suspension “excessive”
A Windsor, Ont. prosecutor whose social outing with the judge resulted in a mistrial application has had his suspension cut in half following a successful grievance of the original penalty.
Crown Attorney Thomas Meehan’s regional director suspended him for 10 days without pay after it emerged that he twice met up with Ontario Superior Court Justice Kelly Gorman on the evening after a guilty verdict was delivered in the murder trial they were both working on, but before the judge delivered her sentencing decision in the case.
Arguing on behalf of Meehan, the Ontario Crown Attorney’s Association claimed Lowell Hunking, the prosecutor’s boss, told him to expect a letter of counsel – an informal non-disciplinary warning – for his misconduct, but that the director changed his mind and handed out a much stiffer penalty based on the embarrassment caused by a subsequent series of news stories focused on the episode.
The case became a minor media sensation in late 2017, generating a number of articles in local, national and trade newspapers. Meehan told the hearing that he even went as far as retaining counsel to file a defamation action – but thought better of it when advised a civil case would likely only do more damage – while in his evidence, Hunking said he read none of the press reports.
Arbitrator Nimal Dissanayake agreed that the newspaper articles may have given readers “the wrong impression” of Meehan’s personal and professional character, but concluded that Hunking’s ruling was not influenced by any misleading of inaccurate information in them.
“The point is, the grievor was disciplined only for his conduct on August 23, 2017, and not for anything he did or failed to do, before or after that night,” Dissanayake wrote.
Still, the 10-day suspension was too harsh for a first offence by a prosecutor with an unblemished 14-year employment history, the arbitrator ruled.
“I am convinced that what he did on that day, while serious, was completely out of character for him,” Dissanayake’s decision reads.
“Considering the seriousness of the offence in light of the mitigatory factors in favour of the grievor, I find that a ten-day suspension without pay as the first step of progressive discipline was excessive. A lesser penalty that would reflect the seriousness of the grievor’s conduct, and at the same time achieves the goal of correcting his future behaviour is more reasonable,” he added, cutting the penalty to five days unpaid.
The case traces its roots to the lengthy first-degree murder trial of Andrew Cowan, which Meehan prosecuted before Justice Gorman. According to the arbitration ruling, the jury delivered its verdict at around 9pm on the evening of Aug. 23, 2017, convicting Cowan of second-degree murder.
Meehan then invited a Crown articling student and the police officer in charge of the Cowan investigation for a drink at a Windsor restaurant, where they were met by Justice Gorman. The student’s account of the conversation said that they talked briefly about the case and that the judge joked about the prospect of defence counsel walking in on them, although Meehan told the hearing his memory of the evening differed.
After the articling student reported the encounter, Meehan revealed that he had met Justice Gorman again after the restaurant drinks meeting broke up – on his own for dinner at Windsor Casino – where they were together until the early hours of the morning.
The judge was not yet functus in the case, since she had yet to deliver her sentencing decision. However, as OCAA counsel pointed out, she had little left to decide, given that the conviction carried an automatic life sentence and the defence and prosecution had agreed a 10-year term of parole ineligibility.
But that didn’t stop defence counsel from launching an ultimately unsuccessful mistrial application, which pushed the case into the public spotlight.
Meehan told the hearing that he was unhappy with the press coverage of the incident, as well as the lack of support from his employers to correct their inaccuracies – including the omission of Meehan’s numerous declarations of the conflict to defence counsel and the lack of any objection to his prosecuting the case in light of his friendship with the judge. In addition, Meehan said none of the stories mentioned that Justice Gorman never gave him a favourable ruling in the case.
But Hunking denied the news stories had any influence on his decision. Faced with a dearth of precedent on the disciplinary issue, Hunking told the hearing he filled the vacuum with advice from his own boss and legal counsel at Ontario’s Treasury Board Secretariat, who each agreed a 20-day suspension would be appropriate. He ultimately settled on 10 days, taking into consideration Meehan’s clean disciplinary record, acknowledgement of culpability, work ethic and rare ability to conduct trials in French.
In a statement, the Canadian Judicial Council said that a complaint against Justice Gorman over the same incident has been put in abeyance pending the outcome of Cowan’s appeal, which has not yet been scheduled for a hearing at the Court of Appeal for Ontario.
Meehan did not respond to a request for comment.
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