Murder charge stayed after misconduct alleged

Police, prosecution missteps cited in Nanaimo case

A stay of proceedings in a first-degree murder case arose in circumstances of alleged police perjury and the possible destruction of evidence reputedly involving a senior RCMP officer, the deputy regional Crown attorney in Nanaimo and a court-services employee related to the victim.

B.C. Supreme Court Justice Robert Thompson, sitting in Nanaimo on Friday, refused to issue a publication ban and released documents connected to the June 13 stay of proceedings against Larry Darling, 54. Darling had been charged with the slaying of 28-year-old Kristy Morrey, found dead in Port Alberni on Aug. 20, 2006.

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Postmedia News sought access to the documents, which appear to expose a possible wrongful conviction in process.

“The public has a right to know of these events,” Thompson said in his ruling.

He swept aside arguments by the attorney general, the RCMP and the individuals involved, holding that secrecy could not be maintained and the public has an overriding interest in knowing about the extraordinary events. The issue of possible destruction of evidence was too important a concern, he said.

After an investigation of Morrey’s death, Darling was cleared, Thompson said in his ruling.

However, in 2015 the RCMP made him the focus of a Mr. Big sting involving more than 100 scenarios between February and September 2015. He was arrested on Sept. 11, 2015, and charged.

Darling’s trial began on Aug. 14, 2017, with a lengthy voire dire about the admissibility of evidence and the conduct of the lengthy, $2-million police investigation.

Issues arose about whether the RCMP was co-operating with disclosure requests about the undercover operation — a theatrical made-in-Canada police technique the Supreme Court of Canada has lambasted for its potential to cause wrongful convictions — and it became evident something fishy was going on.

Thompson cited in his ruling a judgment from 2014 that said any confession was presumptively inadmissible if it was a product of these ruses, in which disguised cops play a gang of organized criminals, because they were so manipulative.

The judge had issued a sweeping judgment on Dec. 22 ordering the Mounties to open their files to Darling’s lawyer, Kevin McCullough. Without that disclosure order, who knows what might have happened, McCullough said.

In his ruling, Thompson cited two troubling allegations. First, the police investigation was impugned and allegations of serious misconduct were levelled at team leader Staff Sgt. Greg Mainman — he was locked out of his office, his electronic devices were seized and he was told he was under investigation.

Second, sometime after October 2017, the victim’s aunt, Mary Tilley, a Justice Ministry worker in Port Alberni, approached deputy regional Crown attorney David Kidd and allegedly told him she had documents written by Kristy Morrey about her relationship with Darling that might be relevant.

In April 2018, Tilley’s alleged conversation with Kidd was disclosed by Tilley to the Crown prosecutor in charge of the case, David Fitzsimmons. Fitzsimmons disclosed the alleged conversation to defence counsel, and then in a letter filed with the court obtained by Postmedia.

One of the documents was composed in June 2006 and described by Fitzsimmons as “articulating the dynamic of the relationship between Kristy and Larry Darling at that time. You will recall that Kristy was killed in August of 2006.”

Tilley explained that the collection of papers had come into her possession after the death of Morrey’s mother, Shirley, in late 2016.

According to Tilley, in documents filed in court by the Crown, Kidd allegedly told her: “don’t give it to me; It will just fuel the fire with McCullough.”

The same document reports that Tilley went home and talked to a sister about the situation. The discussion included the possibility of burning Morrey’s documents. Tilley reports having no recollection of actually burning them, but said she could no longer find them.

Kidd asked the court to ban publication of his name, but Thompson said he was in “a leadership role” and supervised other prosecutors.

Darling, who walked free June 13, is mulling a civil suit over the impugned undercover operation and subsequent trial.

Born and raised in Port Alberni, a truck driver for 32 years and Morrey’s off-and-on boyfriend, Darling spent two years in jail, lost his job and his existing relationship fell apart. He was released on house arrest last year

“The past three years have been a nightmare I would not wish on anyone,” he told Postmedia Friday. “Being charged with a crime you did not commit should be everyone’s worst fear. I thank the family and friends who stood by me and everyone who has helped me through this. I’m trying to put my life back together again.”

McCullough said he was outraged at what happened. “Larry Darling has faced the worst circumstance imaginable — being charged with a murder he did not commit. “The importance of full disclosure simply cannot be overstated. The recipe for a wrongful conviction will always be rooted in a failure to retain, identify and provide disclosure to the accused person.”

When the Prosecution Service stayed the charges in June — several weeks after a two-day in camera hearing — the government made no mention in its public statement about alleged police and prosecutorial conduct.

Dan McLaughlin, communications counsel for the service, said at the time the charge approval standard in the murder case could no longer be met: “Charges are only approved or continued when Crown counsel is satisfied that evidence gathered by the investigative agency provides a substantial likelihood of conviction and if so, a prosecution is required in the public interest. … If, at any point, the prosecutor concludes that the evidentiary standard is no longer met or that a prosecution is no longer required in the public interest a prosecution cannot proceed. In this case the prosecutor concluded the evidentiary test was no longer met and directed the stay of proceedings.”

None of the allegations contained in the court records obtained by Postmedia have been proven.

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