NB 1142
Aug. 16, 2006
FREDERICTON (CNB) - The attorney general for the Province of New Brunswick has announced that he will seek independent legal advice to determine whether there is sufficient evidence to warrant the continuing prosecution of Karl Toft.
A Fredericton judge recently granted former Kingsclear Training School resident John Fearon the right to proceed with a private prosecution against Toft on one of four charges. Toft, a former guard at the training school, was convicted on 34 sex-related charges, and served 13 years in prison.
The attorney general will enter a stay in the current proceedings against Toft to allow for nationally-known and respected criminal law expert Joel Pink of Halifax to review the files.
"In the interest of fairness and justice, the attorney general has decided to turn over its files to an independent lawyer from outside New Brunswick," Attorney General Brad Green said. "I am pleased to announce that Mr. Pink has agreed to review the files. If he determines that there is enough evidence to prosecute, then the province will prosecute the matter on behalf of John Fearon. However, if he determines that there is not enough evidence, and a conviction is unlikely, then the matter will be stayed indefinitely."
The attorney general's office is sending a letter to Fearon outlining its course of action and to request that he fully co-operate with the independent counsel by turning over his evidence, including all of his medical records.
A motion will be made before the court to enter a stay of proceedings immediately.
06/08/16
EDITOR'S NOTE: Backgrounder and biography follow. MEDIA CONTACT: Valerie Kilfoil, communications, Attorney General, 506-453-6543.
Backgrounder
On July 14, 2006, provincial court Judge Graydon Nicholas ruled on a private complaint laid by John Fearon against Karl Toft. Fearon laid 4 charges against Toft, and the judge issued process on one. That count alleges that Toft caused bodily harm to Fearon.
The attorney general had a number of options:
Part of the role of the attorney general's office is to evaluate evidence against a test of a reasonable prospect of conviction. That is the charging standard that is used across the country, with minor variations. For example, Ontario uses the same evidentiary threshold test as New Brunswick. Some jurisdictions refer to it as: a substantial likelihood of conviction; a reasonable likelihood of conviction; or a realistic prospect of conviction. In essence it amounts to the same test used in New Brunswick, which is a reasonable prospect of conviction.
In the interest of justice, the attorney general of New Brunswick has decided that the same threshold test should be followed in this situation, as in any other.
Therefore, a decision has been made to stay the charge and obtain independent legal advice. An outside independent counsel will evaluate the evidence made available during the recent court process, and make a recommendation as to whether to proceed to trial.
The attorney general is going outside the province because it is important that the public's confidence in this matter be maintained, and to eliminate any doubts that the public may have about fairness and bias in this case.
Criminal law expert Joel Pink of Halifax has agreed to review the files (biography follows).
The letter of instruction to Pink will be made public so that all can see what is being asked. His final recommendations will also be made public.
If the independent counsel recommends that Toft be prosecuted, then it is the view of the attorney general that Fearon should not bear the burden of the cost of that prosecution.
If the independent counsel concludes that the evidence is not sufficient to prosecute, then the charge will be stayed indefinitely.
A letter will be sent to Fearon, asking him to co-operate fully with the independent counsel and to turn over all of his files, including his medical files. An application to stay the charge will be made immediately.
Biography of Joel E. Pink
Joel E. Pink has practised law in Nova Scotia since 1969. A graduate of Acadia University (1966) and Dalhousie University law (1969), he has practised exclusively in the area of criminal law for over 30 years, and is a leader of the Nova Scotia Criminal Bar. He appears regularly in all levels of court with jurisdiction in the province. He has represented accused persons in the provinces of New Brunswick, Prince Edward Island, and Newfoundland and Labrador, and often has a matter pending before the Supreme Court of Canada.
Pink is a former member of the Investigative Committee for Discipline, a former member of the Bench/Bar Liasison Committee and a former member of the Q.C. Appointment Committee of the Nova Scotia Barristers' Society. He was founding president of the Nova Scotia Criminal Lawyers' Association, and served for several years as president of the Continuing Legal Education Society. He is a fellow of the American College of Trial Lawyers and of the International Society of Barristers. He is president of the Sopinka Cup Committee.
For more than 30 years Pink has lectured extensively to justice officials, police, forensic specialists, and law students about issues in Canadian criminal justice. He has been a strong proponent of continuing legal education and advocacy training for the Nova Scotia Bar and the Canadian Bar Society. For 31 years he was a member of the faculty of national criminal law program of the Federation of Law Societies of Canada, which lectures to judges, crown attorneys and defence council from across Canada. He has taught courses in criminal trial practice and evidence at Dalhousie Law School, and has taught criminal law as part of the criminology program at Saint Mary's University.
Pink has consistently maintained an AV rating with Martindale Hubbell. He has authored and edited important reference texts for professionals and lay persons for Carswell Legal Publishers in Canada.
06/08/16