WINDSOR — A senior criminal lawyer is coming to the defence of a Superior Court judge after comments Justice Richard Gates made in an amended bail hearing application were leaked to the local media.
The lawyer, Patrick Ducharme — one of the city’s leading defence counsel — was in court to begin a trial when he received last-minute word that the Crown’s office wanted to amend a bail application for his client JH.
JH is charged with more than a dozen counts of fraud, forgery, and public mischief, with a police investigation ongoing into some 60 criminal complaints, and other charges expected.
JH and two other accused ran a used car dealership. Police say they allegedly defrauded customers by charging more for the vehicles than had been agreed to, altering finance charges and loan terms, and forging customers’ signatures on contracts.
The defence and Crown had earlier agreed that as part of JH's bail conditions he post surety but be allowed to leave the country for eight days to visit his sick mother in Lebanon, which was granted by the court. JH was supposed to be back Nov. 3, but never returned.
Days before JH’s departure, deputy Crown Renee Puskas sought to amend the conditions because she said JH was a flight risk. She said information had come forward about additional charges. As well, court documents from the United States indicated that JH’s mother lived there, not in Lebanon. The documents referred to JH’s previous U.S. conviction for delivering heroin to an undercover police officer.
“Given the nature of the allegations and in particular forgery allegations, the Crown is concerned and we would just like to be able to check that out,” The Windsor Star reported her as saying.
But in the leaked court transcripts Gates reportedly snapped at Puskas, calling her behaviour “appalling” and the “ultimate act of incivility.”
The judge also knocked Puskas for interfering in the case, which was being handled by the original prosecutor Gary Nikota.
“You can’t sit there in the office like some faceless bureaucrat and completely step in the way and confound the orderly running of our criminal justice system,” he said.
The judge was so angered by Puskas, whose action he described as “jerking around” the legal system, that he suggested her interference “arguably . . . should be reported to the law society.”
But Ducharme suggested Gate’s comments were reported out of context and that the judge had been unnecessarily embarrassed.
“I want to in a way support Justice Gates’s decision here,” he told Law Times. “I believe that if I went in front of a hundred judges, a hundred of them probably would have done exactly the same thing as him.”
Ducharme said the bail conditions were agreed to by the original prosecutor and judge, noting JH has a wife and children in Windsor. But prior to the start of a three-day trial on another matter, also before Gates, the court was told Puskas had new information about JH and wanted to immediately appear before the judge.
But, said Ducharme, Puskas was not actually there and didn’t arrive until about an hour later, provoking the judge’s ire. “[Gates] was a little miffed initially with the Crown because she wasn’t there,” he said. “In some respects she was holding up a trial.”
The Crown’s office did not comment, but referred all questions to the Ministry of the Attorney General. AG spokesman Brendan Crawley said he did not have a comment because the case is still before the courts. He said the ministry “does not track” such bail condition violations. Gates’s secretary said justices do not speak to the media.
Ducharme said he has dealt with dozens of similar requests for out-of-jurisdiction travel and it’s rare for something to go awry. He has since dropped JH as a client and JH’s wife is on the hook to pay a $15,000 surety.
“There’s nothing unusual about this,” he said. “The only thing that’s unusual is in this particular case another Crown stepped in to kind of trump what the first Crown did but without any knowledge of that first Crown or me knowing that she was even working on the case.”
When Puskas finally appeared in court she pulled out an American newspaper article about JH’s U.S. conviction that also apparently showed his mother lived in the U.S.
“She just brought a newspaper article that seemed to refer to him and, you know, handed it to me literally while she was on her feet,” said Ducharme. “But it’s not evidence, you have to literally call some evidence on that.”
Ducharme says he still doesn’t have “any reason to believe” the mother is not in Lebanon given he had two pieces of medical evidence “that came from a person who purported to be a doctor in Lebanon.”
Ducharme said the leaked documents unfairly embarrass all those in the case, including the original prosecutor.
“The poor guy, I think he’s probably as embarrassed by all this as I was and as the judge probably is now that the media has made him look like he did something that was wrong,” he said.
Ducharme condemned his former client — he is not representing any others in the case — for violating the order. “The guy stiffed me the same way as he stiffed the judge and the prosecutor,” he said. “I feel as put out here and as disappointed in [JH’s] failure to return as everyone else.”
Ducharme said it could also jeopardize travel for other defendants who have “humanitarian” reasons for leaving jurisdictions. “I hope our judges don’t get so jaded by this that everybody’s afraid to make these concessions,” he said.
Toronto criminal lawyer and media commentator Steven Skurka said all parties here “conducted themselves properly.”
Skurka said the judge was correct to rely on the Crown’s original consent “in the absence of proof that the doctor’s note was a forgery or that the defendant’s mother didn’t live in Lebanon.”
He also said the Crown then sought to alter the conditions “in good faith.” Meanwhile, Ducharme “was certainly entitled” to rely on his client’s assurances.
But, Skurka said, the judge’s rebuke of the Crown “was regrettable and unwarranted. The fact that the defendant absconded made this abundantly clear.”
Heidi Illingworth, executive director of the Canadian Resource Centre for Victims of Crime, said it’s often the case “that fraudsters will do anything to avoid being held accountable and it is common for them to flee.”
