| The Death of Helen Betty Osborne The Aboriginal Justice Implementation Commission |
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| Report of the Aboriginal Justice Inquiry of Manitoba
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Background Top The Public Prosecutions Branch is responsible for laying and approving charges and for prosecuting those accused of criminal behaviour. The police consult the local Crown attorney for advice on the strength of evidence and on the laying of charges, or when they wish to obtain a search warrant. Tim Singh, the Crown attorney responsible for The Pas at the time of the Betty Osborne murder investigation, was located in Flin Flon. Although we do not know when Singh first became involved, Sergeant Grosenick told us that he probably had discussed the file with him from a very early stage. The Director of Prosecutions in the Department of the Attorney General in Winnipeg requested a review of the file on November 15, 1972. Stan Nozick, then a Crown attorney in the Winnipeg office, did that review and concluded there was not sufficient evidence to warrant the laying of charges. He did, however, recommend a meeting of the Winnipeg Crown’s office, the Crown attorney from Flin Flon and the police investigation team for the purpose of "brainstorming" the matter. Singh, however, felt that such a meeting would not serve any useful function and the meeting did not take place. A meeting later was arranged, on February 15, 1973, apparently by Nozick, with a number of Crown attorneys, including Singh, but not the investigation team. As a result of this meeting, it was decided that it was not possible to lay charges and that the RCMP should attempt to identify the brassiere. The file was to remain open. In December 1985, when Constable Urbanoski completed his review of the file and had interviewed all the available witnesses, he submitted the file to the Attorney General’s department for advice on whether it warranted charges being laid. After many discussions among the Crown attorneys and the RCMP, charges were approved against Colgan and Johnston on August 13, 1986. They were charged in October 1986. Their preliminary hearing was scheduled for March 10, 1987. On March 9 the preliminary was postponed because Colgan offered to give evidence about the events of the evening if the charges against him were dropped. After consulting with the Director of Prosecutions, the Crown attorney, George Dangerfield, granted the immunity to Colgan and the charges against him were stayed. Charges were then laid against Houghton and a preliminary hearing for Houghton and Johnston was set for July 6, 1987. At the preliminary they were committed to trial, and their trial for first degree murder began on November 23, 1987. On December 2, 1987 Johnston was convicted of second degree murder and Houghton was found not guilty. George Dangerfield was the Crown attorney at the trial. He also appeared at Johnston’s unsuccessful appeals to the Manitoba Court of Appeal and to the Supreme Court of Canada. Top
Supervision within the Attorney General’s Department Top We understand that in 1972 the local Crown attorney had not been in that position very long, and we question the degree of supervision and assistance he received from more experienced Crown attorneys in the Attorney General’s department. We suggest that, as with the RCMP, the Crown office should be organized so that the full resources of the department, including advice from experienced head-office Crown attorneys, not only should be available, but should be injected into the local office when major crimes are being investigated and prepared for trial. We think it was a mistake for the Attorney General’s department to have allowed the local Crown attorney to veto the meeting suggested by Stan Nozick in 1972 with the local Crown, a representative of the Winnipeg office and the investigation team. The advice of Nozick should have been followed. Several witnesses, including Serge Kujawa from Saskatchewan, said that such meetings are important and can be productive. New insights may result from the intense scrutiny possible in such a brainstorming session. New minds brought to bear on the known facts and issues may bring to light new angles on the crime, the suspects and the investigation. We do not, of course, suggest that a major breakthrough would have occurred, only that it might have. We recommend that:
Crown Decisions Top Both the police and Crown attorneys can lay charges. The usual practice is for the police, after having sought the advice of a Crown attorney, to lay charges and then to pass the file over to the Crown attorney’s office for prosecution. The office of the Crown attorney may refuse to prosecute the charges laid by the police. In that case, Crown attorneys can substitute other charges or decide to stay proceedings. The duties of the Crown attorney were referred to in the Supreme Court of Canada in 1955 when Mr. Justice Rand said: It cannot be over-emphasised that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before the jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented; it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings. (Boucher v. The Queen, [1955] S.C.R. 16 at 23—24) These duties now are laid out in Principle 9 or Rule IX of the 1987 Canadian Bar Association Code of Professional Conduct. It reads in part: When engaged as a prosecutor the lawyer’s prime duty is not to seek a conviction, but to present before the trial court all available credible evidence relevant to the alleged crime in order that justice may be done through a fair trial upon the merits. When deciding whether a charge should be laid, the Crown attorney must keep this duty in mind. The Crown attorney must not allow charges to be laid which are not properly supported by the facts or the law. Criminal guilt, in relation to serious crimes such as those involved in the abduction and murder of Betty Osborne, requires proof of two elements. First, it must be proved, upon admissible evidence, that the accused committed some act in furtherance of the illegal activity. This is the factual element of the crime. Second, it must be proved, upon admissible evidence, that the accused possessed the necessary intent to commit the act. This is the mental element of the crime. Only where evidence exists which proves these two elements can a charge properly be laid. The Crown attorney should advise the laying of charges only when the following question can be answered in the affirmative: Could a judge, or a jury properly instructed and acting reasonably, convict the accused or the accuseds, based on the admissible evidence as presented by the police to the Crown attorney? Where doubt exists that a conviction would result, it is the responsibility of the Crown attorney to advise the police to continue their investigation. If the evidence reveals that a conviction might result on a different charge from that suggested by the police, it is the responsibility of the Crown attorney to advise the police of that fact. If certain evidence is necessary for a conviction, the Crown attorney should advise the police of the deficiencies in their case and offer any advice which might seem appropriate. Top
The Early Decision Not to Prosecute Top Both the local Crown attorney, Tim Singh, and the Winnipeg office agreed in December 1972 that there was not sufficient evidence to warrant the laying of charges. While by that time the police were quite certain that they knew the identity of the persons involved, the evidence they had was, for the most part, unreliable, very weak or inadmissible. They had the anonymous letter identifying Colgan, Houghton and Manger. However, since the letter also contained inaccuracies they could not be certain of its reliability. In addition, without the writer of the letter, its contents would not have been admissible. Even if she had been in court her testimony would have been limited by rules of evidence. If her information was based on what Colgan told her, her evidence only would have been admitted against Colgan if he were on trial, but could not have been admitted against any other accused. The police also knew that the piece of the brassiere found in the Colgan car had once been part of the bloodstained brassiere found along the road near the site of the murder. They knew that hair similar to Betty Osborne’s had been found in the Colgan car. And they knew that a blood stain had been found on the rear seat of the Colgan car. None of this evidence was conclusive. The brassiere on the road was never identified positively as having belonged to Osborne. Neither could the blood nor the hair be identified positively as hers–although both were similar to hers. And even if they had been, it was impossible to prove that they had come into the car on the night of the murder. Urbanoski’s report shows that the police had Brian Johnson’s statement that he had ridden in the Colgan car with Colgan, Houghton and Manger on the night of the murder. Johnson said that when he was in the car, Colgan was driving, and that he later saw Houghton driving. Even that testimony offered no direct link to the murder. There was the evidence of the cab driver, Philip McGillivary, who saw the car near the scene on the night of the murder. There were a number of problems with this evidence. McGillivary had described the car as being light blue. It was in fact white. Furthermore, it was not known whether the evidence gained from hypnosis was admissible. No hypnosis evidence has ever been admitted in Canada. And again, because the windows of the car were fogged, the cab driver could not see how many persons were in the car. Consequently, his evidence too provided only a tenuous link between the Colgan car and the murder scene. Urbanoski’s report shows that late in June 1972, two informants related to the police the rumours that were circulating in town as to the identity of the murderers. One of these informants told them that the fourth man was Johnston. These informants had not heard any confessions themselves. Since it was hearsay, their evidence would not be admissible. The police also had what might have been a limited admission by Colgan. When interviewed by Corporal Duncan on September 24, 1972, Colgan is reported to have admitted being at the scene but claimed that he had done nothing and was afraid of the others. He is also said to have commented, "Oh the brassiere and the blood, well that doesn’t prove anything." Since these comments were made without Colgan having been cautioned or charged, the RCMP felt that they would not be admissible. The RCMP also had the statements by Colgan’s father that he knew that his son had been at the murder scene but that he had done nothing. This, of course, would not be admissible in court unless the father was prepared to say what his son had told him. The police, therefore, had some very weak evidence against only one of the suspects: Colgan. None of that evidence suggested that Colgan had taken part in the actual murder. Even the limited admissions made by Colgan and his father were not useful because they exonerated Colgan rather than implicated him in the murder. The decision not to lay charges in 1972 was, in our opinion, the correct one in law. Since they had no admissible evidence against Houghton, Johnston or Manger, the police could not have charged any of them, at that time. Although they had knowledge of rumours indicating Colgan’s presence at the scene and circumstantial evidence linking the Colgan car, we do not think that such evidence warranted the laying of charges. There was only very equivocal admissible evidence linking the Colgan car to the murder. Colgan’s admission to Duncan was, in all probability, inadmissible, but even if it were admissible, it did not link him to the murder. There was a high probability he was in the car when Osborne was abducted. There was no evidence that he was a part of any agreement that Osborne be abducted. There was no evidence that he took part in either the assaults or the murder. We do not think that the evidence against Colgan in 1972 would have been sufficient to enable a properly instructed jury to convict him. Constable Urbanoski told us that his review of the file revealed that in 1981 the police asked the Crown attorney’s office in Winnipeg whether the admissions might form the basis of a charge against Colgan as a party or for aiding and abetting. The Crown, Urbanoski told us, simply said no, that that "would not hold water at all." That would appear to have been a reasonable conclusion. A charge of aiding and abetting requires proof of assistance or of enabling the principal offender to escape. An admission of "being there" is not an admission of having participated in the murder. A person has to take some active part in the planning or carrying out of an offence before guilt can attach to that person. A mere bystander cannot be convicted of an offence committed by someone else. Merely maintaining silence as to the identity of a murderer is not a criminal act. The Court of Appeal, in its rejection of Johnston’s appeal of his conviction for Betty Osborne’s murder, commented that it was once a crime to know the identity of a criminal and remain silent, and suggested it might be time to revive the charge in order to prevent persons such as the four suspects in Osborne’s murder from remaining silent. Although knowing the identity of a murderer and remaining silent about that knowledge was a crime in Great Britain until 1967, it has probably not been in Canada since 1892.1 While we sympathize with the frustration from which this sentiment comes, we do not feel that such a recommendation is supportable in the post-Charter age. On the other hand, had charges been laid against only Colgan, he might very well have sought an immunity deal much earlier than he did. The police knew that Colgan’s father had some misgivings about the quality of the advice his son was receiving from D’Arcy Bancroft. Urbanoski told us that on October 29, 1972, Colgan’s father told Corporal Stewart and Constable Moorlag that he felt that Bancroft was not acting in his son’s best interests. Given that, it does seem that had Colgan been charged, even with lesser charges, his father might have sought the advice of a new lawyer. And that lawyer might have advised Colgan to seek a deal with the Crown. However, the mere possibility of Colgan’s having a change of heart as a result of being charged would not, in our opinion, have warranted a charge being laid. There was no available evidence upon which any sort of charge could have been laid and successfully prosecuted until the various witnesses came forward and told of comments made by Colgan at social events. Even then almost all the evidence was exculpatory, only proving that Colgan was in the car at the scene. His admissions did not disclose any involvement in the murder itself. We do not say that an early charge necessarily would have resulted in Colgan’s cooperation. The evidence to support a conviction was very slim and we do not criticize the Crown for not wanting to settle for any charge less than murder. That charge certainly could not have been laid in 1971 or 1972. Top
The Case against Colgan and Johnston Top When Constable Urbanoski took over the file full time in 1983, his intent was to keep working on the file until murder charges could be laid. In 1985, when Urbanoski had completed his review and had interviewed all the available witnesses including those new ones identified through the newspaper article, he submitted the file to the Crown Attorney’s office once more. In August 1986, after a great deal of discussion among the Crown attorneys and the police, charges of first degree murder against Colgan and Johnston were authorized. Even at this time the evidence by no means gave them a strong case. Of course, they still had most of the evidence that had been available in 1972. Philip McGillivary, the cab driver who had seen the Colgan car the night of the murder, had died. Consequently, it was no longer possible to place the Colgan car close to the scene on the night of the murder. They still had the evidence from the car. Urbanoski told us that by this time they also had a great deal more inadmissible "intelligence" which confirmed their belief that Colgan, Houghton, Johnston and Manger were all at the scene of the murder. The evidence against Johnston was stronger, but it was still very weak. Following the newspaper article, one woman (Unidentified Witness #1) had come forward to tell police that she had been at a party in 1972 which Johnston also attended. She had heard Johnston say, "I picked up a screwdriver and I stabbed her, and I stabbed her, and I stabbed her." She also said that later in the evening she heard him make a comment to the effect of, "Do you know what it’s like to kill someone?" and then add, "It feels great." This evidence, which was admissible because it would be recounted at the trial by the one who actually heard the accused say it, directly implicated Johnston in a murder, although not necessarily that of Betty Osborne. Although weak, it was evidence upon which a jury could base a finding of guilt. A tenuous link to the murder was provided by the evidence of Knut Christiansen, an admitted alcoholic. He recounted the story of an incident in 1972 when he was driving a car with Johnston in the back seat. The two had an argument during which Johnston grabbed Christiansen around the neck, pushed a screwdriver to his throat and said, "Do you want the same thing as that fucking squaw got?" This story, if believed by a jury, would have provided another link to the Osborne murder. It was not a direct admission by Johnston that he killed Osborne or was even at the murder scene. These witnesses could have provided evidence upon which a jury might have based a finding of guilt. Nevertheless, the Crown must have had some concerns about the first witness, since she was only 14 in 1972 when the comments were made. Christiansen was an extremely poor witness and acted in a belligerent manner at the preliminary hearing. Christiansen, incidentally, claimed to have seen Colgan, Johnston, Houghton and Manger in the car on the night of November 12, 1971, and to have seen them pull an Indian woman into the car around midnight. The fact he was not called at the trial indicates that the Crown felt that he was such a poor witness he would only damage its case. Dangerfield said of him: He became a very unsatisfactory witness. He was a bad drinker himself. And so ... between counsel, we decided not to put him in the case. (p. 1001) The evidence against Colgan at that time was weaker still. It consisted of admissions he had made of being present but having done nothing. There was some evidence, however, that Osborne probably had been in the Colgan car and an implication that Colgan had been in the car with her. The fact that it took eight months for the Crown to make up its mind attests to the difficulty of arriving at the decision to prosecute Colgan for the murder of Betty Osborne. There was a substantial amount of indirect evidence linking Colgan with Osborne’s death. There was first the evidence of a murder: the discovery of Osborne’s naked body and the vicious beating that she had suffered. This suggested a death occurring during an attempted rape. There was the discovery of her clothing, minus a brassiere, found nearby under some rocks. There was the discovery of a bloodstained brassiere alongside the road a short distance from the murder scene. A piece of the same brassiere was found in the Colgan car. Although the brassiere was never linked positively to Osborne, the blood stains and the close proximity to the murder site carried a suggestion that Osborne, the brassiere, the Colgan car and, in all likelihood, Colgan himself were associated with the abduction and murder. Further evidence supported such a tentative conclusion. Osborne’s broken glasses were found in a ditch close to the turn-off to the cabins of the Colgan and Houghton families. Two screwdrivers, one in all probability the murder weapon, were found close to the brassiere. A blood stain and hair similar to that of the murder victim’s were found in the back seat area of the Colgan car. None of the evidence in the Colgan car was linked directly and positively to the murder. Nevertheless, there was a strong implication of such a connection. In addition to the physical evidence, there are the admissions made by Colgan through the years. The great difficulty with the admissions is that although Colgan made many confessions of his involvement in the events surrounding Osborne’s murder, he never admitted to participating in the murder itself. All the persons who came forward told the police that Colgan admitted being at the scene but that, if he did mention the actual killing, he always claimed that he had remained in the car while one or more other persons had beaten and stabbed Osborne. Colgan never admitted to more than being in the car at the time she was murdered. In order to sustain a charge of murder, the Crown must prove participation by the accused in an act which results in death and, in addition, that the accused intended to do something that he or she knew or ought to have known would result in death. However, the Criminal Code provisions in effect in 1971 contained a further definition of murder which includes constructive murder. Section 230 defined murder as a situation in which one person causes the death of another while committing certain other offences such as abduction or assault, and in which the assailant means to cause bodily harm for the purposes of committing the offence. Proving Colgan’s involvement in the abduction and assault of Betty Osborne might have brought him within the bounds of that section and might have resulted in a murder conviction against him. Such, indeed, was the theory with which Dangerfield approached the prosecution of Colgan in 1986. Colgan’s admissions to others included the admission that he, along with the others, had picked up Osborne with the intent of having sex. He told Annette Veito that it was he who picked up Betty Osborne and that they "had her stripped" by the time they got her to the airport. Unidentified Witness #2 told us that she was with Colgan and Randy Cudmore when Colgan told Cudmore that they took Osborne "to the lake for a gang bang." Colgan told Sheriff Wilson that Osborne got into the car willingly, but she was killed because "she did not want to screw for us." He told Veito that Johnston stabbed Osborne and he told Unidentified Witness #2 that Johnston killed her. There was also the evidence of Kathy Phillips that she had been told by Colgan that he had been in the car that night. The Crown’s belief obviously was that such evidence might have been sufficient to convict Colgan of murder. It clearly suggests a willing involvement on the part of Colgan in the abduction and assault of Betty Osborne. The fact that the abduction, assault and attempted rape resulted in Osborne’s death might have been sufficient to have obtained a conviction of murder against Colgan. Nevertheless, it must be noted that a conviction would have by no means been certain. In all but one of the statements given to the police by those who heard Colgan’s admissions, Colgan is reported to have remained in the car at the scene of the murder. Only in the statement to Unidentified Witness #2 did he place himself outside the car when the murder occurred and even then he stated that as Johnston stabbed Osborne, the rest of them "fell to their knees." This particular piece of evidence, incidentally, only became public during the course of our hearings. Once Colgan had agreed to testify and received the immunity, the evidence had no value. It could not be introduced against anyone other than Colgan, who had made the comment. In only one statement, that to Veito, did Colgan implicate himself in the stripping and assault on Osborne. In all the other admissions, Colgan presented himself more as a bystander than as a participant in Osborne’s abduction and assault. He told his wife that he was at the scene when the murder took place, but that he had done nothing. He also told her that he "was with the wrong people at the wrong time and the girl was killed." Colgan told Veito that he was in the car when Johnston came back for the screwdriver. There was, then, very little evidence that Colgan had caused any of the bodily harm eventually suffered by Osborne. The case was weak, the evidence was primarily circumstantial and there was no certainty of obtaining a conviction. That being said, however, it is still our opinion that there was sufficient evidence upon which a jury acting reasonably might have convicted Colgan. Top
The Case against Johnston and Houghton Top On March 10, 1987, when Lee Colgan received immunity from prosecution and made a statement to the RCMP, the first full version of the events of the abduction and murder became known. As a result of what Colgan was prepared to say, the evidence against Johnston was strengthened considerably. His evidence placed Johnston at the scene and outside the car when Betty Osborne was murdered. It also showed Johnston committed an assault on Osborne in the car. The evidence of Unidentified Witness #1, who recounted the admission by Johnston that he had stabbed someone, was now linked to the Osborne murder by Colgan’s testimony. It was possible now to dispense with the unreliable testimony of Christiansen. The probability of the conviction of Johnston was much stronger. There was clear evidence on which a jury might convict. Armed with Colgan’s statement, the Crown charged Houghton with murder. The evidence against Houghton, while weaker, also seems sufficient to warrant the charge of murder being laid. Colgan’s evidence placed Houghton at the scene and outside the car when the murder took place. The fact that Houghton was out of the car when Johnston came back for the screwdriver, apparently the murder weapon, reinforced the possibility that Houghton might have been a participant in the murder. The evidence of two sets of boot tracks beside the drag marks which led to Osborne’s body, and the two sets returning to the car, suggested that two persons had been involved in hiding her body in the bush. There was sufficient evidence upon which a jury might have made a finding of guilt in relation to charges against Houghton. It should also be noted that although the evidence about Colgan’s admissions to a variety of people implicates Houghton and Johnston, and to a lesser extent Manger, those people could not have introduced what Colgan told them as evidence against any of the others. To those who are unfamiliar with the rules of evidence, it might seem wrong that the admissions could not have been used against Houghton and to further strengthen the case against Johnston. Nevertheless, it is the law that such statements can be used only against the makers of them. Statements by one accused may be used against the accused who made the statements, but may not be used against any other person. For example, if Colgan told a witness that he assaulted someone, that could be used as evidence against Colgan. On the other hand, if Colgan told the witness that Johnston assaulted someone, that information would not be admissible against Johnston and could not be used as proof that Johnston did what Colgan alleged. Generally, only what one knows from one’s own observations of another’s activities is admissible in a court of law. Rumours fall into the category of hearsay and are not admissible in evidence. There was still no direct evidence that Houghton participated in the actual murder. Nor was there evidence that Houghton took part in the assaults on Osborne, either in the car, at the cottage, or at the pump house. And not a single witness had heard any admissions from Houghton that he even had been at the scene the night of the murder. Nevertheless, it is our opinion that the murder charges against Houghton and Johnston were properly laid. Colgan became available as a witness and his evidence of what he saw and heard was admissible. Top The Decision Not to Prosecute Manger Top There was some evidence against Manger but it was not sufficient to support a charge. Manger had made no confessions or admissions to anyone. The evidence at the trial of Houghton and Johnston and at the Inquiry suggested that Manger moved his seat forward to allow Johnston to force Osborne into and out of the car. Colgan’s evidence, however, suggested that Manger had done nothing else to assist, or interfere with, the activities of the other three. Indeed, he said Manger was cowering under the dashboard of the car when the murder apparently was taking place. In addition, all the evidence suggested that Manger was too drunk to form the requisite criminal intent. The evidence would not, we believe, support a charge of murder, kidnapping or of any offences related to the assaults on Osborne. If Manger had been sufficiently sober to form the intent to assist in the abduction by opening the door and sliding the seat forward in order to enable the others to get her into the car, he might have been convicted of being a party to the offence of abduction. While we suspect that he may have had the capacity to form that intent, there was clear evidence of his drunkenness which the Crown was entitled to take into consideration in its decision not to prosecute. Top
The Immunity Agreement Top After he was charged with first degree murder, Colgan consulted lawyer Donald MacIver. Urbanoski told us that within "a couple of hours" of being arrested on October 3, 1986, Colgan, through his lawyer, indicated to the RCMP that he ultimately would be of use to the police. On March 10, the day appointed for the preliminary hearing, MacIver approached Crown attorney George Dangerfield and offered to have Colgan testify as to what he knew of the murder, in return for an agreement that he would not be prosecuted for his part in the events of the evening. Dangerfield told us that he did not bargain with MacIver to have Colgan plead guilty to a lesser charge. He understood, he told us, that there would be no point in making any counter-proposal. It had to be a total immunity. Although he made the decision to grant the immunity himself, Dangerfield did obtain an opinion on immunities from the Crown’s office and did discuss the granting of the immunity with Wayne Myshkowsky, the director of prosecutions for the Province, and obtained his approval. Granting an accused person immunity from prosecution carries with it the assumption that the person who has been granted immunity is getting away with something and is thereby circumventing the law. Both Dangerfield and Kujawa said that the procedure is resorted to only in very serious crimes where no other evidence is available and where all accused are likely to go free. Kujawa said that while the granting of immunity looks terrible, the alternative may be that no one will be convicted. Dangerfield said that, at the time he was approached, he felt the Crown had a weak case. He was concerned that both accused might be acquitted. The Crown, without Colgan, had only two witnesses who could involve Johnston and none who could implicate Houghton. With Colgan’s evidence they had someone who could speak about the abduction of Betty Osborne, about what happened in the car, the fact that Johnston was outside the car, the noises of banging against the car he heard, and that Houghton was also outside the car at the pump house about the time the murder was committed. Kujawa felt that an offer of immunity sometimes may be necessary to get a conviction, but should be used only after everything else has been tried. In this case he said that his opinion was that the immunity deal was "entirely proper." His review of the file led him to conclude that, prior to Colgan’s agreeing to testify, there was not enough evidence to warrant laying charges against anyone. He said: "It is not much of a deal when you are giving the guy nothing." We agree with Kujawa that the immunity in this case was in all probability as good a deal as it would have been possible to make. Since we believe that the murder charge was laid on a weak basis, we do not think that the Crown had much with which to bargain. MacIver had told Dangerfield that the deal would be all or nothing. Kujawa did have some misgivings about the immunity agreement and the process by which it was granted. On immunity generally, he said the procedure is so serious and so delicate that an offer of immunity should not be made by anyone other than the Attorney General. Kujawa also felt that some of the wording might be changed. It should provide that the person will "truthfully testify," rather than, as here, that he would give evidence "to the best of his ability." He also felt that a full statement should be taken and that should be tied to the agreement. He said the Crown cannot challenge details later if they are not contained in a statement. Although the statement was not tied explicitly to the agreement in this case, Kujawa felt that no harm was done. A further problem with the wording of the immunity agreement is the inconsistency between the wording of the first and second parts of the document. In the first part, the Crown granted immunity to Colgan in return for his testimony at the trial for murder. In the second part, Colgan agreed to testify in any proceedings against Houghton or Johnston in relation to the murder of Helen Betty Osborne. We believe that it should have been made clear that the immunity was granted in return for Colgan’s evidence at any proceedings which might be related to the events of the night in question.
To: Lee Scott Colgan, Accused And To: Donald N. MacIver, Counsel for the Accused Dear Sirs: I am instructed to tell you that in return for your client giving evidence in respect of the murder of Helen Betty OSBORNE, on November 13, 1971, both at the preliminary hearing and subsequent trial of Dwayne Archie JOHNSTON and James Paul HOUGHTON for the murder of Helen Betty OSBORNE, that the charge of Murder in the First detree [sic] will be withdrawn against Lee Scott COLGAN and that no further proceedings will be taken against Lee Scott COLGAN in relation to that charge of Murder, a charge of Rape, or any other offence in any way related to the murder of Helen Betty OSBORNE, November 13, 1971. This undertaking by me as an agent of the Attorney-General is given on the understanding that Lee Scott COLGAN will give evidence to the best of his ability when called upon to do so, but does not depend on the outcome of the proceedings against James Paul HOUGHTON and Dwayne Archie JOHNSTON. [signed] J.G.B. Dangerfield Counsel for the Crown I, Lee Scott COLGAN, understand these terms set out above and agree to give evidence to the best of my ability, according to them in any proceedings taken against James Paul HOUGHTON and Dwayne Archie JOHNSTON or either of them arising out of the murder of Helen Betty OSBORNE, November 13, 1971. [signed] Lee Scott COLGAN (Exhibit 23) We recommend that:
Did Colgan Breach His Immunity? Top Questions about the immunity granted to Lee Colgan were raised before the Inquiry. There was concern as to whether Colgan may have breached his immunity agreement by changing his evidence from that given at the preliminary hearing to that given at the trial, regarding the time Houghton spent outside the car at the pump house. Counsel for Justine Osborne and the Norway House Band in his final submission suggested that the provincial Justice department should "take a serious and in-depth look" at revoking the immunity and prosecuting Colgan. This, coupled with the fact that the visit of Colgan to Houghton’s lawyer indicated a willingness, at least at that point, to change his testimony, requires that we look closely at Colgan’s testimony. Colgan gave a number of versions of the events of that night. He wrote a "diary" for his lawyer, MacIver, at the time of his arrest. He gave two statements to the police before the preliminary hearing, he gave testimony at the preliminary hearing and at the trial, he appeared before us, and, of course, he made a number of "confessions" to various members of the community. No two versions are identical. We identify three major areas of variance. First, there are discrepancies as to the length of time Houghton was outside the car at the pump house. Secondly, there is a difference regarding Johnston’s comments when he returned to the car at the pump house for the screwdriver. And thirdly, there is the testimony that Colgan gave for the first time at the trial regarding Houghton’s purpose in getting out of the car at the pump house. Some variance can be expected in a case such as this where one is relying on the recollections of a witness who was intoxicated at the time of the event–an event which occurred many years before. What makes the changes the subject of such concern is that they all benefit Houghton. Adding to the concern is Colgan’s admission before us that he had, in his evidence at trial, attempted to make Houghton look "good." The changes might not, therefore, be the result of poor recall. There is a chance that they were the result of a conscious decision by Colgan to adjust his testimony to help his friend Houghton. If that were to be found to be the case, the Crown would be justified in charging Colgan with perjury, and perhaps even lifting the immunity and charging him for his participation in the assault and death of Osborne. It is also possible to find the immunity agreement was breached without a conviction for perjury. Before examining Colgan’s testimony, it is necessary to preface our remarks with a discussion of the law of perjury. Section 131 of the Criminal Code provides, in part: [E]veryone commits perjury who, with intent to mislead, makes before a person who is authorized by law to permit it to be made before him a false statement under oath or solemn affirmation, by affidavit, solemn declaration or deposition or orally, knowing that the statement is false. Section 132 provides, in part: Everyone who commits perjury is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.... Finally, section 133 provides: No person shall be convicted of an offence under section 132 on the evidence of only one witness unless the evidence of that witness is corroborated in a material particular by evidence that implicates the accused. What this means is that in order to convict for perjury, the Crown must prove first, that the accused intended to mislead and second, that the accused knew the statement to be false. Third, there must exist some corroboration that the accused knew that the statement was false. Some doubt exists as to whether corroboration is necessary where the accused admits to the false statement. In R. v. Bouchard (1982), 66 C.C.C. (2d) 338 (Man C.A.), the Manitoba Court of Appeal, Chief Justice Monnin held that s. 133 was not relevant where the accused in various statements contradicts himself or herself. Mr. Justice O’Sullivan was of the view that corroboration remained necessary, while Mr. Justice Matas decided on another ground and made no comment on the issue. The changes in the statements regarding Johnston’s comments when he returned to the car for the screwdriver are the easiest to assess. Houghton, it will be remembered, was outside the car when Johnston returned for the screwdriver. At the preliminary hearing Colgan was asked by the Crown, "Did he say anything to you at this time?" Colgan replied, "Just some thing to the effect, ‘Find him something.’ I don’t know for sure." At the trial, when asked a similar question, he replied at first, "I’m not sure if he–I asked him what he was doing I think, but ..." And when asked again, he said, "I don’t think he said anything." Before us, the story changed again. When questioned on direct examination by counsel for the Inquiry, he replied, "Something about getting something, I think, I’m not sure right now, at the moment." During cross-examination by counsel for the Indigenous Women’s Collective, he was asked, "Did he [Johnston] say anything to you when he came to the car?" Colgan replied, "Just something about ‘Get me something,’ or something to that effect." It can be seen from this that Colgan went from having Johnston "find him" something, which suggests that the screwdriver was for Houghton to use, through not remembering anything, to relating a statement which suggests that Johnston was getting the screwdriver for his own use. The screwdriver, of course, was the murder weapon. Clearly, there was a change of evidence here which benefited Houghton. However, this would not be evidence which could be admissible against Houghton. This statement, made by Johnston to Colgan and related to the court by Colgan, would be inadmissible as hearsay in relation to the charges against Houghton. It would, of course, be admissible with respect to Johnston since it was he who made the comment. It might suggest that Johnston did not actually commit the murder. It would, nevertheless, show sufficient involvement to support the murder charge, since obtaining the weapon could make him a party to the offence, even if he did not actually use the screwdriver. It is a statement which, if it had been admitted at trial, might have encouraged the jury to believe that Houghton, and not Johnston, had committed the murder. We know that Colgan has admitted that he attempted to make Houghton look good. The transformation of that comment, since it clearly helps to make Houghton look good, might be seen by a judge to be an attempt to mislead. And that might be sufficient to support a charge of perjury. It is, however, unsupported by corroboration and, therefore, might not be sufficient to warrant a conviction. Only Johnston and Manger could give such corroboration. Johnston has refused to talk and Manger claims to remember nothing. Corroboration is impossible. Of course, if Chief Justice Monnin in R.v. Bouchard is correct, there would be no need for corroboration. It is possible there was no attempt by Colgan to mislead on this point. It might be that these comments represented his true recollections. On all three occasions he was very unsure of what was said or whether anything was said. All this would make conviction of Colgan on a charge of perjury difficult to obtain. The second issue concerns the time spent by Houghton outside the car at the pump house. The sequence of events at the pump house is as follows: When the car arrived at the pump house, Houghton was driving. Manger was in the front passenger seat and Johnston, Colgan and Osborne were in the back seat. Colgan said Johnston got out of the car, taking Osborne with him. There followed a period of time, some five to ten minutes, when the three men remained in the car while banging was heard against the rear of the car. At some point, Houghton got out of the car. Some time later, and the time varies, Johnston returned and got the screwdriver. It is clear that at this point, Betty Osborne was still alive since Colgan saw her standing almost naked outside the car when the door was opened. A second period of time passed, after which Colgan climbed into the front seat and turned the car around. Colgan called out to Houghton and Johnston that they were leaving. Someone responded, "Just a minute." Finally, after another lapse of time, Houghton and Johnston returned to the car and they all left with Colgan driving. Colgan’s testimony was consistent on the fact that when Houghton got out of the car, Osborne was alive, and that when he returned, she was dead. The importance of the period of time, of course, is that the longer Houghton was out of the car, the more likely it is that he was involved in the murder. In a diary written for his lawyer, dated October 15, 1986, Colgan states that Houghton was out of the car for "about five minutes" before Johnston returned for the screwdriver. In his statement to the police on March 10, 1987, Colgan states that Johnston returned to the car "about five minutes" after Houghton left the car. At the preliminary hearing, Colgan stated that Houghton was outside the car "a while" before Johnston returned and at the trial the time was described as "just a brief moment I think." Before us, Colgan was questioned at length about the time. He was very vague. His first response was: "It didn’t seem like a long time. It could have been anywhere from a minute or two, or less, or more, I guess." When he was asked, "It could have been five minutes?" he responded, "I don’t think it was that long," and then added, "Could have been." Finally, he agreed that Houghton could have been out of the car for five minutes. It is clear that the length of time gets shorter through the various statements, from five minutes in October 1986, through a brief moment at the trial, and back to possibly five minutes before us in June 1989. While this looks suspicious, the shortening of the time, from "a while" to "a brief moment," between the preliminary and the trial, is very equivocal. All this could be interpreted as Colgan’s deliberately having varied his testimony at the trial and placed Houghton outside the car for a considerably shorter time than in his other statements. It is, however, equally consistent with his having faulty recollection. On this point too, without corroboration that he intended to alter his testimony, a conviction would be unlikely to result. The third troublesome area of Colgan’s testimony relates to the intentions of Houghton when leaving the car at the pump house. At the trial, in direct examination, Colgan stated that he asked Houghton to "get out of the car to stop them [Johnston and Osborne] before anything got too bad." This was the first time that Colgan remembered any comments he made to Houghton at the pump house. In his diary, he stated: "Jim [Houghton] got out to see what was happening." In his March 1987 statement to the police he said much the same thing: "I guess Jim got out to see what was happening." In the April statement to the police, the following exchange took place: Q In the statement to your lawyer, you mention that Dwayne [Johnston] had taken Betty outside the car and that "Jim got out to see what was happening. There was some banging outside the car." Is that accurate? A The banging on the car, I think happened before Jim got out. I am not sure if I asked Jim to go out and stop him, ‘cause they were banging against the back of the car. I think we may have been sitting inside drinking wine, unless it was all gone by then. (Exhibit 56, p. 3) At the preliminary hearing, Colgan first revealed that he had remembered that he spoke to Houghton in the car at the pump house. After it was noted that the banging on the car had lasted approximately five minutes, the following exchange took place: Q Alright, what happened then? A Well, we were getting a little worried because we didn’t know what was going on. I asked Jim to go out and stop what was going on because he was the biggest one in the car. (Preliminary Inquiry, p. 341) This was substantially similar to the testimony at the trial. In response to some leading cross-examination by Houghton’s lawyer, at the trial Colgan remembered that Houghton too had said something. The exchange, which follows a discussion of the banging on the car, goes as follows: Q And you were talking, the three of you about how bad this was when you heard the noise out there, weren’t you? A Yes. Q And you were worried about it, all of you, Jim, you, Menger, [sic] you were all worried about what was happening, weren’t you? A Yes. Q And you decided that Jim, because he was the biggest, should try to go out and stop it. Isn’t that right? A Yes. Q And he said, "I’ll try." Isn’t that right? A I don’t know what he said. He got out though. Q He agreed to go stop it, didn’t he? A Yes. Q That’s why he got out, isn’t it? A Yes. Q And you know that to be true, isn’t that right? A Yes. Q He got out to stop this, not to hurt this girl. Isn’t that right? A Yes. Q And you have no reason to believe that he went from trying to help this poor girl into killing her, do you? A No. (Trial, p. 503—4) While this evidence, which was very favourable to Houghton, was new, it was consistent with his earlier preliminary hearing statement that Houghton had left the car at the pump house to stop Johnston. Colgan himself denied that he had changed his testimony, although he admitted before us that he had attempted to make Houghton look good. When he was examined on the issue before us, this exchange took place: Q At the trial, while giving your evidence with respect to this matter, did you attempt to colour it or shade it in any way to put Houghton in the best light possible? A Mr. Houghton was a very good friend of mine, and I told the truth at the trial. I didn’t change anything to my knowledge. Q Did you in any way colour or shade your evidence to put Mr. Houghton in the best light that you possibly could? A I wanted him to look good, yes. (p. 1339) This raises a suspicion that Colgan may have changed his testimony. However, in our opinion it is not a sufficiently strong suspicion to warrant a perjury charge. More importantly, perhaps, we do not think that the evidence before us is sufficiently strong to support the contention that Colgan breached the terms of his immunity agreement. Top
The Conduct of the Trial Top Generally, the lawyers acting for the Crown and for the accused (Greg Brodsky for Johnston and John Scurfield for Houghton) did so in the accepted manner. Counsel for the two accused cross-examined vigorously, and in their submissions told the jury of the various theories and verdicts suggested by the evidence. They argued that the Crown had not discharged its onus of proving the guilt of the accused beyond a reasonable doubt. We find that each of the defence counsel acted in a thorough manner throughout the trial. Some criticism was levelled against the Crown for the way in which the evidence regarding the footprints found at the scene of the murder was entered. We noted in Chapter 4 that the map prepared by Cpl. Harold Bielert, of the footprints found at the scene, did not contain a complete record. Bielert, it will be remembered, failed to map the footprints leading from the blood stain where Betty Osborne’s body had first been laid, to the place where she had been found. At the trial, Bielert entered the map he had made into the evidence but was not asked to explain its content. In cross-examination, John Scurfield questioned Bielert in some detail about the map and the photographs he had taken of some of the footprints. Having discussed the footprints from the parking area to the mounds where Osborne had first been laid, Scurfield went on to ask about the footprints from that place to the last resting place. The following exchange took place: Q Now you indicated that on the diagram you’ve indicated something which is called, "Body drag marks," is that correct? A Yes, sir. Q And from that I see there–with the exception of the tracks which are noted to be south of the body drag mark [leading away from the body to the parking area], you didn’t note any set of tracks, distinct or otherwise either to the immediate north or the immediate south of that drag mark, is that correct? A That is correct. Q And I take it that if there had been tracks which you in your judgement considered to be foot tracks, either immediately north or immediately south of the drag line, that’s something you would have thought important and put into your diagram, isn’t that correct? A Yes, Sir. Mr. Scurfield: I don’t have any further questions of this witness. (Trial, p.127) This testimony left the distinct and erroneous impression that Bielert did not see the footprints following along either side of the drag marks. Dangerfield did convince the judge to allow him to re-examine Bielert and he asked the following questions: Q You said that you, when you examined the tracks, you made some notes about the drag marks, can you tell me whether there was any disturbance on either side of the drag marks? A Yes, Sir, there was. Q What sort of disturbance was there? A There were footprints. Mr. Dangerfield: Thank you very much. (Trial, p. 147) With this discussion, the matter was clarified, although not emphasized. In view of the strength of the cross-examination and the importance of the issue, the re-examination might have been more comprehensive. Perhaps other officers also should have been called to make it clear there were two sets of footprints leading to the bush and back from the body. While Serge Kujawa felt that the evidence was entered adequately, he commented that it would have been "helpful" if another officer had been called to clarify the point. The evidence relating to the footprints found at the scene was an essential aspect of the Crown’s case, particularly against Houghton. The evidence was brought in in a rather confused manner and that confusion could only assist the accused. Ultimately, Dangerfield did make the issue clear. In his address to the jury he pointed out that there were two sets of prints leading to the place where Osborne’s body was found and two leading away from it. Scurfield, Houghton’s lawyer, made the point that the prints were not on the map and that Bielert had stated that the map showed all the footprints in the vicinity of Osborne’s body. He also commented that Bielert at first had described the two sets of tracks as "disturbances." The trial judge, Mr. Justice Schwartz, in his address to the jury properly noted that whether there were two sets of footprints beside the drag mark was for the jury to decide. These comments apart, we do not think that the Crown attorneys are to be faulted for their handling of the trial. While some might have expected that the evidence would have caused the jury to convict Houghton as well as Johnston, it must be recognized that there probably was some reasonable doubt as to what, if anything, Houghton actually did or intended to do when he was outside the car. Proof beyond a reasonable doubt is the test required by our law. Top
The Laying of Lesser Charges Top Our mandate requires us to consider whether the proper charges were laid in relation to the murder of Betty Osborne. We believe the Crown was correct in laying murder charges against Colgan and Johnston in the first place, and later against Houghton when Colgan became available as a witness. We also find that it was right for the Crown not to have charged Manger. Colgan could not be prosecuted once the immunity agreement had been signed and he had testified at trial. At the time the Criminal Code stated that no charge other than murder could be included in an indictment for murder. Consequently, it was not possible for the Crown to prosecute Johnston or Houghton on a lesser charge at the same time as the murder charge. The Criminal Code now has been amended to permit the Crown to join other charges with a charge of murder as long as all charges arise from the same incident. Only one issue remains: whether Houghton should have been charged with another offence after he was acquitted of murder. In considering this matter, we are mindful of the decision of the Supreme Court of Canada in Starr v. Houlden, [1990] S.C.R. 1366, which, among other things, directs commissioners not to make findings of criminal or civil liability. When the Crown proceeded against Johnston and Houghton, it hoped to obtain a murder conviction against both. However, the jury convicted Johnston and acquitted Houghton. We do not know the basis for either decision and, because it is illegal for jurors to disclose anything that transpired during their deliberations (Criminal Code s. 649), we will never know. With the acquittal of Houghton the matter was ended as far as the Crown was concerned. He had not been charged previously with other offences related to the events of November 12 and 13, 1971. No consideration was given to charging him with other offences after his acquittal. Crown attorney George Dangerfield was asked why additional charges were not laid. His response was that it was not usually done and that he had never done so. He never considered doing so in this case. Serge Kujawa told us that he followed the same practice and that he hoped all Crown counsel in Saskatchewan did likewise. Neither was able to indicate where the practice of not laying lesser charges originated. There have been, however, cases where other charges have been proceeded with after a person has been acquitted of murder. The most recent one in Manitoba of which we were made aware is R. v. Kirkness (1989), 58 Man. R. (2d) 131 (Q.B.), where the Crown chose to proceed with charges of break and enter against Kirkness after his acquittal for murder. We gained the impression that lesser charges generally are not laid after an acquittal on the basis of a feeling that to do so would be unsportsmanlike; would not be "cricket." We can understand that approach when viewed from the standpoint of counsel. The Crown takes its "best shot." If it fails, that is that. Such an approach is commendable in a way and fits with the British sense of justice and many traditions of the bar. We do not, however, believe that such a practice is in the public interest. Society would be better served by having all those who take part in serious criminal activity brought to justice for their involvement. It would be more fair to the accused to lay other charges at the earliest possible time, but we do not believe that it is wrong, where circumstances warrant, to lay further charges after an acquittal on a charge of murder. We recommend that: The Crown end its practice of declining to consider further charges after an acquittal of murder. When pressed during questioning, Dangerfield gave further reasons why he did not think additional charges should be laid against Houghton. These reasons included the passage of time and likelihood that a defence of delay under section 11(b) of the Canadian Charter of Rights and Freedoms might have succeeded. He was also concerned that, since Colgan’s evidence at the murder trial was not believed, it could not support other charges. We do not agree that Colgan’s evidence was not believed. The acquittal at trial meant only that the jury had found that the evidence did not support a murder conviction. We are not certain that the delay caused by a properly pursued murder charge would give rise to a section 11(b) Charter challenge on lesser charges. In 1989 in its decision in R. v. Conway, [1989] 1 S.C.R. 1659, the Supreme Court of Canada found that the delay caused by two previous trials which had been overturned on appeal, together with other delays due to complications in obtaining counsel, did not amount to a delay which would prevent a third trial from being held. In that case a five-year period had elapsed since the laying of the charges to the commencement of the third trial. However, we concede that the question is not resolved easily, nor is it for us to determine. We believe the Crown should have acted after Houghton’s acquittal of murder. The Crown should have considered whether the evidence would support any other charge. It seems to us that the Crown should have considered whether charges of abduction, assault or accessory after the fact to murder should have been laid. If, in its opinion, these or other charges could have been proved, the appropriate charges should have been laid. If it decided there was insufficient evidence to prove any other charge, that would have been the end of the matter. Our opinion is that a prosecution should not have been avoided on the basis that a Charter challenge might have been made. We believe that the seriousness of the incident warranted the consideration of additional charges. Even now we believe the Crown should review the matter to determine whether the evidence against Houghton warrants the laying of other charges. We do not, in view of the Starr decision, make any suggestion of the likelihood of his conviction. We recommend that: The Crown consider whether additional charges should now be laid against James Houghton. Top
1 The crime of misprision of a felony was a common-law offence. S. 8 of the Criminal Code, S.C. 1953—54, c. 51, now R.S.C. 1985, c. 46, s. 9, reads in part:
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