KAMLOOPS, B.C. - The trial of a Mountie charged with breach of trust for allegedly watching two female inmates have sex in a jail cell will proceed despite a judge's skepticism that the officer should even be prosecuted.
RCMP Cpl. Ken Brown’s trial, related to the incident on Aug. 18, 2010, will begin Tuesday.
Brown, also known by his middle name Rick, was watch commander when he, two other Mounties and at least one guard were accused of failing to intervene when they viewed a video monitor showing two drunk women engaged in a sex act.
One of the women later claimed to be HIV-positive.
B.C. Supreme Court Justice Selwyn Romilly called a special hearing to listen to arguments from Crown and defence lawyers after saying he wasn't sure if the matter is criminal as opposed to civil.
Crown lawyer Andrew MacDonald told Romilly that he does not have the discretion to call a hearing to listen to arguments on whether the trial should proceed, based on the principle of prosecutorial discretion.
“A decision made prior to the start of a trial clearly would amount to interference of matters that are sacrosanct and immune to judicial review,” MacDonald said.
MacDonald said because that decision has already been made by the Crown, the court has no ability to second-guess it until after a trial has started.
Romilly agreed, noting the only exception is an abuse of process by the Crown.
“I can find no abuse of process in these proceedings,” he wrote in his judgment.
Following a preliminary hearing into the charge against Brown, a provincial court judge found there is enough evidence to proceed to trial.
Last year, municipal jail guard David Tompkins was placed on a year of probation after pleading guilty to breach of trust.
Two RCMP constables — Evan Elgee and Stephen Zaharia — were charged alongside Brown and Tompkins, but charges against both men were later dropped.
Elgee’s charges were stayed following a preliminary inquiry in 2013 and Zaharia’s charges were stayed in June of this year.
Despite the trial moving ahead, Romilly also made it clear the Crown has a difficult hurdle to obtain a conviction.
“It may be significant, however, that at the time of the alleged offence, there was no policy, no guidelines, no rules, no practices or directives in place that set the standard of what to do in the circumstances in which Brown found himself,” Romilly said in his reasons for judgment.
Brown was suspended with pay after the incident and remains on paid leave. (Kamloops This Week)
