Court upholds stay of charges in Hickman Equipment case

Dissenting opinion says upholding previous decision ‘compromises the integrity of the justice system’

Ashley Fitzpatrick afitzpatrick@thetelegram.com
Published on November 7, 2016

Newfoundland Supreme Court

ST. JOHN'S, N.L. — The provincial Court of Appeal has upheld the decision to stay charges against former lead hands at Hickman Equipment.

The court reviewed a February 2015 decision of Justice Carl Thompson of the Supreme Court of Newfoundland and Labrador, staying charges against former Hickman Equipment general manager Hubert Hunt, vice-president of sales William Parsons, chief financial officer Gary Hillyard and sales manager John King.

The men faced, collectively, 16 counts of fraud, one count of conspiracy to commit fraud, one count of falsifying books and one count of circulating a false prospectus, based on the results of investigations in the wake of the company’s insolvency and bankruptcy.

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In a decision issued Friday, Court of Appeal judges Gale Welsh and Malcolm Rowe, with a dissenting opinion from Lois Hoegg, found the decision to stay the charges given pre-trial delay was appropriate.

The original decision found the delay amounted to an abuse of process and a breach of the charter rights of the accused men.

The charges were rooted in the insolvency and bankruptcy of Hickman Equipment in 2002. The superintendent of bankruptcy requested an investigation 10 years before charges were ultimately laid. The investigation extended from allegations the business had sold equipment out of trust — carried out financial transactions using equipment the company didn’t truly own — and falsified records.

The Hickman Equipment bankruptcy remains one of the largest in the province’s history. In the Court of Appeal decision, it noted $93 million in company losses were left to the company’s creditors to swallow. The company was $113 million in debt when it went out of business.

In a dissenting opinion, Hoegg highlighted the amount of material and time-consuming investigation required in the case.

“The investigation involved many transactions, many people, many locations and much time. In short, it was both complex and massive. To describe it as less would be disingenuous,” she stated.

In terms of evidence, documents were gathered by police from 306 locations, Hoegg noted, with search warrants and production orders required. There were interviews of 250 to 300 witnesses throughout Canada and the United States. The disclosure package developed by the Crown included 734,000 documents.

That said, speaking generally of the type of charges and investigation involved, Hoegg stated an upholding of the original decision carried its own risks.

“Complicated commercial crime is most often committed by persons in positions of power and influence and blessed with financial resources. Staying criminal charges in such cases translates into a pass for perpetrators of these crimes and could even be understood to widen the gap between the haves and have nots in our society and affect the perception that everyone is entitled to be treated equally before and under the law.

“Upholding the judge’s decision in this case amounts to an advance declaration that the most complicated, sophisticated crimes will not be prosecuted. To my mind, this result tarnishes and seriously compromises the integrity of the justice system, and accordingly would not establish abuse of process.”

Hoegg found the delay specific to the Hickman Equipment case was legitimate, based on the “massive and complex investigation” involved.

The appeal was heard March 9.

The decision can be appealed to the Supreme Court of Canada. The Telegram has not yet reached Crown prosecutor Lloyd Strickland on whether the request will be made to take the case there.

Since February, The Telegram has attempted to determine the costs to the public purse in relation to the Hickman Equipment case, but not enough information is available through the RCMP — without signing on to a “very costly” search — to make it possible to determine the amounts involved.

Through federal access to information, some information was provided, as reported in May and August.

afitzpatrick@thetelegram.com