By Craig Campbell, News Staff
Ontario’s Attorney General office won’t tell the public why it withdrew a Highway Traffic Act charge against an on-duty Hamilton Police officer who struck and injured a Dundas woman crossing Governor’s Road on a scooter.
A Dundas resident was reportedly knocked 100 feet from the crosswalk at Governor’s and Main Street on her scooter, after being hit by a Hamilton Police vehicle turning right onto Governor’s Road before 3 p.m. on September 27, 2012. An ambulance took the woman to hospital.
After the incident, Hamilton Police charged 63-year-old constable David Schwalm for failing to yield to a pedestrian under section 140 of the Highway Traffic Act.
The charge was withdrawn last month by a Waterloo Region legal services staff member retained by the Attorney General to serve as prosecutor for the final court hearing.
According to a transcript provided by Hamilton’s provincial offences court from a Sept. 17, 2013 court hearing on the Schwalm charge — acting prosecutor Reinhardt Schmidt withdrew the charge against Schwalm.
“The officer involved and two other witnesses were here,” Schmidt said, according to the transcript. “I had discussed the evidence with these people and determined that in light of the charge laid, there is no reasonable prospect of conviction, and subject to any argument that (Schwalm’s defence attorney) Mr. Keith may wish to make against that, I’ll simply be withdrawing the matter.”
In response, Justice of the Peace Nancy Rogers-Bain said she couldn’t imagine Schwalm’s lawyer would make any argument against the charge being dropped.
In response to questions by Hamilton Community News, civil rights attorney Clayton Ruby said the brief appearance falls short of meeting legal standards and fulfilling public confidence in the justice system.
“The accepted standard in withdrawal of charges is to put on the record not merely that there is no reasonable prospect of conviction but also to explain why that is so respecting that particular case,” Ruby stated in an email to Hamilton Community News. “Such conclusions are rarely self-evident, and to fail to explain on the record undermines the justice system.”
The entire transcript of the appearance filled less than a page, with fewer than 125 words spoken by all parties. Schwalm’s attorney said only his first initial and “Thank you, Your Worship” during the hearing. No evidence was entered into the record, and no witnesses testified.
Attorney General spokesperson Brendan Crawley referred all questions regarding the case to Waterloo Region, where he said the prosecutor is employed.
Reached by telephone last Friday afternoon, Schmidt said: “I have no comment,” and quickly hung up on the reporter.
The case raises several questions about how the Attorney General handles prosecutions of police officers. However, Crawley said that it is not unusual to bring in someone from outside the region to prosecute such a high-profile case.
“With the accused in this matter being a local police officer, it was determined that it would be appropriate for an out-of-town prosecutor to handle the case,” Crawley said. “The ministry retains outside counsel on a case-by-case basis when the administration of justice and public confidence in the administration of justice requires it.”
Crawley said the outside prosecutor made all decisions with respect to the case.
“It is a fundamental cornerstone of our justice system that justice be served and that every appearance of fairness be maintained,” Crawley said.
Crawley did not say how the Attorney General chooses out-of-town prosecutors to handle such cases.