Second degree murder conviction overturned

A legal victory for a Leamington man found guilty of second-degree murder in 2017. 

Andrew Cowan was convicted of killing his best friend, 53-year old Edward Witt, during a car crash in 2012 in which the defence claimed was part of a suicide pact.

But on Wednesday, June 1 the Court of Appeal overturned his conviction and ordered a new trial saying that there was a miscarriage of justice because there was a reasonable apprehension of bias relating to the trial judge and the prosecutor.

The defence had submitted an application for a mistrial, saying Judge Kelly Gorman "failed to disclose the nature and extent of her close friendship with Crown attorney Tom Meehan", pointing out the judge had at least two meetings with the crown in the absence of the defence.

After the jury rendered its verdict, the judge met at a local bar for drinks with the Crown, the Crown's articling student and lead investigating officer, and after leaving the bar, "the Judge and Crown communicated via text message to meet up for dinner alone."

On August 31, 2017, the regional director of crown operations contacted the defence to advise that there was an investigation being launched into potential impropriety.

The defence contended the crown engaged in conduct that "undermines the integrity of the judicial process."

Defence lawyer Patrick Ducharme doesn't believe the prosecution will appeal Wednesday's ruling. 

"Reasonable apprehension of bias is something that goes right to the heart of the fairness and the integrity of the judicial system, and they would come to the conclusion that the whole preceding should be stayed. In other words they would not proceed with a new trial based on the fact that the judicial system failed this accused so miserably."

Ducharme says his client was denied a fair trial. 

"We learned after the fact that they had been to each other's homes several times, they had gone out together, even during the trial they had contact," he continued. "And right after the verdict was announced they went drinks together after the conviction for second degree murder was registered against the accused."

He believes overturning the conviction was the right thing to do. 

"The Court of Appeal, at least in my opinion in reading their judgement, came down heavily and strongly against the behaviour of both the trial judge and a prosecutor of some considerable experience," Ducharme said.

Ducharme also believes the appeal will stand and his client will be freed. 

"I am confident they will not appeal this decision, they look bad enough already with a Superior Court judge and an experienced prosecutor having been found to have a bias and not disclosing it properly or reasonably."

Defence lawyer Patrick Ducharme maintains Cowan and Witt made a suicide pact leading up to the fatal crash. 

"They both agreed that they wanted to take their own life and they were going to do it together, and we had argued that for that reason Mr. Cowan should've been acquitted."

Ducharme says the crown has 30-days to notify the defence of an appeal or file paperwork for an extension.  

In October of 2012, Cowan was driving a pick-up truck, with Witt in the passenger seat, when he drove up a flower bed in Leamington at a high rate of speed using it as a ramp and crashed into the second floor of a building.

Witt died and the crown contended the crash was intentional and Witt was not suicidal.