Fees ought to by no means have been laid in Henoche custody loss of life case, says defence lawyer | CBC Information

A St. John’s attorney who represents one of nine prison guards formerly accused of killing an inmate says the charges laid against her client will have a lasting impact.

Rosellen Sullivan — who represents David Constantine, who had been charged with manslaughter —said the ordeal could hurt the correctional officer’s career, noting that a “cloud of suspicion” has hung over his head for over two years.

“It’s cold comfort to him that it’s not going any further,” Sullivan said, reached by phone Thursday, a day after CBC News reported the Crown had ended its pursuit of a trial for good.

But the effects will be felt for some time, she said, on things like background checks.

“It’s going to show up that my client was charged with manslaughter,” she said. “There is no little asterisk on those records checks that say, ‘Oh, by the way, he shouldn’t have been charged.'”

Sullivan is one of a slate of attorneys who defended the nine correctional officers at Her Majesty’s Penitentiary, where 33-year-old Jonathan Henoche died while in custody.

Police investigated Henoche’s sudden death, on Nov. 6, 2019, for over a year before announcing they had arrested 10 penitentiary employees. Charges against one of the guards were later dropped.

“The public perception is that 10 correctional officers beat Mr. Henoche to death. That is false, and it absolutely needs to be corrected, for Mr. Henoche’s family as well as these 10 individuals,” Sullivan said.

Henoche died within the walls of Her Majesty’s Penitentiary in St. John’s. (CBC)

For the nine remaining guards, another full year would pass before a provincial court judge would examine the evidence — consisting of an autopsy, a re-enactment of the use of force against Henoche and surveillance video from inside the prison — and dismiss nearly all charges against the accused.

Jason Anthony, Chris Coady, David Constantine, Stefan Cumby, Daniel Dalton, Scott Dwyer, Jenine Rickert, Riley Ricks and Lori Williams have been cleared of criminal wrongdoing. A charge of failure to provide the necessaries of life remains against Jeff Thistle.

Judge Pamela Goulding, who all but shut the book on the case in December following a preliminary inquiry, said the video footage pointed to the guards acting in a “professional and dutiful manner,” their movements while restraining Henoche “calm and orderly.”

To take the case to trial would “elevate the great prospect of wrongful conviction,” she said at the time.

Sullivan says the evidence she viewed wasn’t sufficient to justify charges in the first place.

“I don’t know if it was public pressure or what,” she said. “It obviously warranted an investigation, without a doubt — there’s no question about that. But how it ended up in a courtroom? I don’t know.”

Clashing medical opinions

Justice Minister John Hogan declined an interview, directing CBC News instead to the Office of Public Prosecutions.

“The RNC investigators conducted a comprehensive investigation and determined there were reasonable grounds to file charges,” said director Lloyd Strickland in an emailed statement.  

“Public Prosecutions reviewed and based on the evidence available at the time, concluded there was a reasonable prospect there would be convictions on the charges as filed.”

Henoche died while awaiting trial for murder. He was accused of killing 88-year-old Regula Schule of Happy Valley-Goose Bay.

Rosellen Sullivan, a defence lawyer in St. John’s seen here in a file photo, says the available evidence should have been examined by experts before prosecutors decided to pursue charges. (Eddy Kennedy/CBC)

His autopsy listed his death as a homicide by asphyxiation.

Prosecutors’ evidence, indeed, showed Henoche lying on the floor of a cell, a spit hood covering his head, as one guard kneeled on his lower back to place Henoche in leg irons.

But a second medical opinion, from Ontario’s chief forensic pathologist, disagreed with the autopsy, pointing out Henoche’s heart condition and noting that his struggle during the altercation and his medication could have contributed to sudden heart failure.

That opinion, in a report reviewed by CBC News earlier this week, appeared to further relieve the guards of any criminal wrongdoing.

It aligned with Goulding’s decision that the correctional officers had acted according to policy and administered use of force correctly.

Lawsuit ongoing

Henoche’s family, represented by lawyer Bob Buckingham, has filed a civil suit against the Newfoundland and Labrador government, alleging Henoche — who had fetal alcohol syndrome — was not adequately cared for while behind bars. 

“Mr. Henoche’s family deserves to know what happened. But all of these people charged deserve for the public to know what happened,” Sullivan said.

She suggested the case might never have ended up before a judge had prosecutors called on more experts.

“This autopsy and re-enactment should have been peer-reviewed,” she said. “If that was peer-reviewed, this would not have happened.”

A second medical opinion suggested Henoche died due to heart failure, with an underlying medical condition exacerbated by his struggle with the prison staff. (Facebook)

For Sullivan’s client, the end of the criminal case has brought only torn emotions.

“People have asked me that — oh, ‘he must be happy.’ No, he’s not happy. He’s relieved, but he is angry,” she said.

“We’re not talking about a situation where the Crown couldn’t prove an offence beyond a reasonable doubt. We are talking about a situation in which a charge should never have been laid. There was no offence.”

According to Statistics Canada, more than two-thirds of cases brought to court ended in convictions as of 2014.

Read more from CBC Newfoundland and Labrador

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