Rules of disclosure can be a trial A Crown prosecutor who became a legal pariah is inches away from exoneration, writes KIRK MAKIN The Globe and Mail By KIRK MAKIN UPDATED AT 3:13 PM EST Monday, Oct. 13, 2003                  As a rule, Crown prosecutors are associated with wrongful convictions only when they contribute to one. Shelly Hallett is an exception. Condemned by a judge for one of the worst offences a prosecutor can commit -- deliberately concealing information from a defendant --  the senior Ontario prosecutor became an overnight pariah in 2001. She is still not completely out of the woods, but Ms. Hallett's exoneration is sufficiently close to warrant some reflections on her experience. The case offers not just an excellent insight into the precarious position trial prosecutors can be thrust into, but it serves as a warning to those who would rush to judgment. The tale begins in 1998, when Ms. Hallett was assigned to prosecute Jacques Leduc in connection with a squalid sex ring whose purported existence had convulsed the Eastern Ontario city of Cornwall.   It was an unpleasant job. Ms. Hallett lived out of a suitcase for lengthy periods, dealing with unfamiliar police officers who had carried out a controversial investigation known as Project Truth.  At the heart of it was a stranger-than-fiction figure -- Cornwall Police Constable Perry Dunlop -- who made it a personal crusade to ferret out alleged abuse victims, offer them succour and vouch for their veracity. His obsessive meddling left behind a morass of polluted evidence. Early in Mr. Leduc's trial, the mother of a complainant testified that Mr. Dunlop had contacted her twice to inquire after her son and deliver encouraging words. Ears at the defence table perked up. It appeared that while vetting files for purposes of disclosure, Ms. Hallett had missed -- or deliberately withheld -- three brief references to Mr. Dunlop's phone calls. One was in his own will-say statement, another was in his notebook, the third was in an OPP officer's notebook. In theory, the references might have given the defence a foothold to argue that the complainants had been mproperly influenced by Mr. Dunlop. Citing police as the culprits, the defence sought a stay based on willful non-disclosure. Near the end of the application, it suddenly switched targets to Ms. Hallett. Testimony from police investigators neatly hung her out to dry. On March 1, 2001, Mr. Justice James Chadwick of the Superior Court ruled that Ms. Hallett had deceived the defence to prevent the spectre of Perry Dunlop from entering her case. He granted a stay. In a major case, disclosure can be a morass. Prosecutors live in fear that an innocent oversight could leave their career in ruins. To say Ms. Hallett felt cheated, humiliated and embittered by Judge Chadwick's ruling would understate reality. True, she didn't face a life of prison food and endless pleas for mercy to the Justice Department. But she was blasted straight into professional purgatory. Her integrity was compromised. Professional relationships were strained. The Law Society of Upper Canada launched an investigation into her behaviour. Ms. Hallett withdrew into the more insular world of appellate law. Her bosses at the Ministry of the Attorney-General didn't exactly abandon her. However, nor did they bend over backward to throw resources into an appeal. Even more chilling, her ministry launched  an independent police investigation into her conduct.  Against this backdrop, a strikingly similar case was unfolding, also in Eastern Ontario. Mr. Justice Paul Cosgrove of the Superior Court had stayed murder charges against Yvonne Elliott, citing scores of constitutional breaches by police and individual Crown officials reaching up to the highest levels. Painstakingly prepared and litigated by a virtual Who's Who of senior prosecutors and top-flight contract counsel, the Elliott appeal had been given Cadillac treatment. Many trial prosecutors took careful note of the juxtaposition. As it was, they had been nervous since a Supreme Court ruling last year in a case known as Krieger, which opened them to investigation and discipline by law societies. The Hallett affair proved the need for strict internal protocols as to how allegations of Crown misconduct are treated in the post-Krieger era. It can no longer suffice for senior bureaucrats to issue ad hoc decisions, on a case-by-case basis, when the very future of a prosecutor is at stake. "Perhaps the most important issue raised by Leduc is the lack of a transparent protocol within the ministry," says William Lightfoot, president of the Ontario Crown Attorneys Association.  "All an assistant Crown attorney really has is their professional integrity. I can't think of a more important issue." Several weeks ago, Ontario Court of Appeal judges John Laskin, Kathryn Feldman and Eileen Gillese issued their ruling in the Leduc appeal. Judge Laskin said he could overturn the Leduc findings only if Judge Chadwick's reasoning was "tainted by palpable and overriding error." It was that, and some.  "His finding is entirely unsupported by the record, does not take into account several exculpatory considerations, and flies in the face of the innocent explanation given by Ms. Hallett -- an explanation the application judge had no reason to reject," Judge Laskin said coldly. He found it perfectly understandable that Ms. Hallett could have missed -- or failed to appreciate -- the three brief references to Mr. Dunlop among the overwhelming pile of documentation that had confronted her. Moreover, Judge Chadwick had misinterpreted and misapprehended the evidence, Judge Laskin said. Far from there being any evidence of willful non-disclosure, he said, it had all pointed straight in the direction of innocence. The appeal judges reversed the stay order, saying it was "so clearly wrong that it does amount to an injustice." Not surprisingly, Ms. Hallett has no interest in being interviewed. She feels little warmth toward the press and besides, Mr. Leduc is      seeking leave to appeal several aspects of the ruling to the Supreme  Court of Canada. Whenever wrongful convictions are exposed and corrected, one invariably hears a pat phrase: The system worked. And it certainly has worked in the Hallett case. Counsel on both sides made precisely the arguments they ought to have made, and a panel of judges rectified a miscarriage. All's well that ends well.  Except for two things. First, Ms. Hallett will be changed forever by her two years in professional hell. Second, she shares the fate of all wrongly accused or convicted individuals -- there will always be muttered doubts about her true innocence. For obvious reasons, exoneration is a word we reserve for criminal convictions. Perhaps, it shouldn't be such an exclusive club. Defendants are not the only ones who can be chewed up by the justice system.  kmakin@globeandmail.ca                © 2004 Bell Globemedia Publishing Inc. All Rights Reserved.