Temple arson attorney says defence should have been shown police misconduct report
Attorney in Hindu temple case says defence should have been told about police misconduct investigation
A defence attorney who represented one of the defendants in the Hindu temple arson said he should have been shown a copy of an independent police review into police misconduct by Hamilton Police officer, Staff Sgt. Ian Matthews, related to the temple arson case.
A spokesman for the Ministry of the Attorney General told CBC Hamilton that the defence counsel were not provided a copy of the report by Niagara investigators, but that all counsel were "fully aware" of the allegations against Matthews.
"All counsel were of the view that the information relating to Staff Sgt. Matthews was irrelevant to the trial," said Brendan Crawley, ministry spokesman.
But attorney Peter Boushy said all he knew at the time were "rumours" of an inappropriate relationship between Matthews and a source on the arson case, who was a romantic partner of one of the three accused.
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Boushy said had he known there were more than rumours about a relationship —that there had been a formal investigation— he would've been "duty-bound to ask for disclosure."
"Had this proceeded to trial, this kind of information is very important to the defence because the information can be used when crafting cross-examination questions about credibility or the sufficiency of the police investigation," Boushy said.
'Lessens the adverse impact'
The outcome of the case, a deal where the three pleaded guilty to lesser mischief charges, was one that everyone seemed happy with, he said.
The three men were charged 13 years after they attacked the temple and a nearby mosque a few days after the Sept. 11, 2001 World Trade Centre terrorist attacks, destroying the temple.
In late 2014, each one of the three struck a plea deal with the Crown attorney prosecuting the case, pleading guilty to lesser mischief charges and agreeing to terms of community service, probation and donations to charity.
Still, the sense among the attorneys at the time, Boushy said, was that the crimes had happened 13 years previous, the offenders had been young men and none had previous criminal records.
"When you can get an arson pled down to mischief, that's, under normal circumstances, a very good thing for your client," Boushy said.
"When the matter's being resolved for a mischief charge, and all parties are happy with that, including the community, that lessens the adverse impact of the lack of disclosure."
'Documents that you don't even know exist'
It's not known if the other two defence lawyers in the case knew of the existence of the internal investigation report.
Venus Sayed, an attorney for another of the three accused, declined to comment both for CBC Hamilton's original story about the investigation into Matthews' conduct and for this story, citing attorney-client confidentiality. The third attorney, Ian Begg, did not return requests for comment.
Boushy said it's not enough in this case for the Crown to rely on the defence's rights to petition the court for disclosure.
"You can't make that application based on rumours," Boushy said. "At no time was the defence made aware that there was a police investigation. ... Rumours are not sufficient to make an application to the court for documents that you don't even know exist."
Asked to respond to Boushy's complaint that the defence was not told about the formal investigation, Crawley said the Attorney General's office had nothing to add to its previous statement.
'Brief, incidental and inconsequential involvement'
The Office of the Independent Police Review Director later investigated complaints leveled by the source, a woman to whom CBC has granted anonymity because her allegations include sexual assault.
The conclusions in the reports by Ontario's independent police review body are based on interviews they conducted, a review of the text messages, and summaries of earlier investigations by both Hamilton and Niagara officers into the woman's allegations.
It's that Niagara investigation, which De Caire disclosed to the Crown, that Boushy believes should have been disclosed to the defence.
While the OIPRD investigators do not vouch for the veracity of all the details of the woman's account, they do conclude that two main complaints against Matthews are substantiated: that Matthews demonstrated discreditable conduct in having the inappropriate relationship with the woman involving drugs, sex and money, and that he had breached confidentiality.
At the time the temple arson case was being resolved, there had been an investigation by Niagara police into Matthews' conduct, and then-Chief Glenn De Caire had authorized telling Matthews that he was officially under investigation by Dec. 16, 2013. Matthews shot himself on Dec. 17.
Crawley, representing the Crown's position, said that Matthews "only had a brief, incidental and inconsequential involvement with the investigation, and therefore his alleged conduct did not impact either the investigation or the prosecution."