‘Neglect of duty’ nixed homicide cases
Independent investigation into “insurmountable evidentiary issue” that led to staying of murder charges in deaths of Corey Markey, Brandon Donelan doesn’t reveal nature of error
Three murder prosecutions in the deaths of two men in Fredericton and Chipman were tanked this summer as a result of a Fredericton police officer’s neglect of duty, but that officer is no longer with the force.
The Fredericton Police Force issued the final report of an independent review it commissioned into the operations of its major crime unit after a prosecutor sought to stay murder charges June 27 against five defendants in two homicides from 2021 and 2022.
Stayed was a joint second-degree murder charge against Joshua John McIsaac, 35, and Travis James Snowsell, 28, both formerly of Penniac, in the December 2021 shooting death of Corey Markey, 41, at Sitansisk First Nation on Fredericton’s north side.
Also scuttled were two first-degree murder prosecutions - one against McIsaac and and Erica Lea Ann Blyth, 42, of Newcastle Creek near Chipman; and another against Devon Mark Hood, 27, and Matthew David LeBlanc, 31, both of Fredericton. The Crown applied to stay those charges as well, which the judge also granted.
The four suspects were all accused in the Jan. 28, 2022, death of Brandon Patrick Donelan, 27, in the Chipman area, whose body was found two months later.
Shortly after the staying of the three murder prosecutions against the five defendants was announced, Fredericton police Chief Gary Forward announced he was commissioning an independent review the force’s major crime unit’s policies and procedures, acknowledging that the police force’s “insurmountable evidentiary error” and the collapsing of such important cases would shake public confidence in the Fredericton Police Force (FPF).
Ontario-based lawyer and police-misconduct investigator Ian D. Scott was hired to undertake the review, and he released his final report Friday.
Scott doesn’t reveal the nature of the policing error that gave rise to the dramatic turn in the three cases in June, but he acknowledged it was of such an extent so as to be practically unprecedented.
“I have been a lawyer for over 40 years, much of my career as a prosecutor, and for five years the director of Ontario’s Special Investigations Unit - I have never heard of such a singular event,” he wrote, suggesting the decision to stay the proceedings would have been serious one within the Office of the provincial Attorney general made only to ensure the proper administration of justice.
The report does spotlight the fact that the error in question arose as a result of conduct by a member of the city police force that could constitute a violation of its code of professional conduct.
No disciplinary consequences
“In my view, there was conduct that could amount to neglect of duty, in the sense that one member arguably neglected his or her duty by failing ‘to work in accordance with official police force policies and procedures,’ contrary to Section 37 of the Police Act’s Code of Conduct,” Scott wrote.
Any consideration for potential disciplinary action is moot, he added, as the officer in question is no longer under the police force’s authority or the jurisdiction of the New Brunswick Police Commission.
“However, that member is no longer a member of the Fredericton police Force and thus cannot be the subject of the province’s Police Act or internal disciplinary matters,” the investigator wrote.
There was no indication in the report if the officer retired from policing or joined another policing agency.
In terms of potential criminal charges arising from the gaffe that torpedoed the Donelan and Markey murder prosecutions, Scott said his findings didn’t indicate any criminal conduct on the part of any of the police officers involved in the investigations.
“While I agree that justice was denied to the families of the deceased and the public when these stays of proceedings caused these prosecutions to end without the calling of evidence in a public courtroom, in my view, there was no wilful attempt by any FPF officer to obstruct, pervert or defeat the course of justice in these judicial proceedings,” he wrote.
“... The ‘insurmountable evidentiary issue’ which caused these stays of proceedings was a regrettable confluence of events unintended by any officers involved in these investigations.”
Scott said if the force adopts the recommendations in his report, such a turn of events would never recur.
Forward, in a news release issued Friday with the report, pledged to implement all 19 recommendations in Scott’s report.
“We regret the pain our error has caused the Markey and Donelan families and take full responsibility for how this has affected public confidence in our force and the criminal justice system,” he said in the release.
“While we cannot undo the wrong, we are fully committed to learning from it and ensuring it never happens again. Working with our members and partners, we will implement these recommendations with a focus on transparency, accountability, and timely communication.”
The recommendations mainly resolve about creating new training and file-management protocols for the police force’s major crime unit, improved and formalized engagement with the Crown prosecutors’ office and other policing agencies, and the creation of new positions, both civilian ones to specialize in major-crime management information systems and a staff sergeant to oversee the implementation all of the measures suggested in the review.
Don MacPherson can be contacted at ftonindependent@gmail.com.
Wow! How can someone get away with murder 🤦🏼♀️