On Feb 12, only one day before the private prosecution of Harvey Berkal re the death oF Lilian Peck was scheduled to be in court, Colleen McDuff sent an email to Harvey Berkal, Harriet Berkal, and Masha Palansky which stated :
Subject: RE: Sharon Home case
All members of the public will be told the same thing, that the Crown has intervened and stayed proceedings pending further investigation. If this is to be done properly this is how things proceed. The file has gone to the Homicide Unit. I have provided all your contact information and once the file is assigned to investigators I expect each of you will be contacted regarding the information you can provide.
Colleen McDuff
Supervising Senior Crown - Domestic Violence Unit
Manitoba Prosecutions Service
Harvey and Harriet Berkal say on receiving that email they understood from it that the Crown was referring the file re: Lillian Peck to the homocide unit of the Winnipeg Police Department.
In my view, on a plain reading of the email by a member of the public, this appears to be a very reasonable interpretation of the email, particularly since instead of just writing the Crown will stay the proceedings, McDuff writes that the public will be told that the Crown has stayed proceedings "pending further investigation."
In response to our inquiries about this email, Colleen Mcduff wrote to the Winnipeg Jewish review on Feb 16 that "In terms of further referral of the matter to police, what I can tell you is that the Crown had not directed or asked the police to investigate this matter further. Police investigations are initiated by a complaint from a member of the public. After a meeting with the Berkals and Ms. Palansky to explain our reasons for staying their private prosecution it was clear they wished to continue to pursue the matter further and we referred them to police. As our office had the particulars they had provided us (which is required pursuant to any private prosecution), as a courtesy, we forwarded same to police and provided Harvey Berkal with a contact number. That ended our involvement in the matter."
Given what the Crown says above , then in my view the Crown was not sufficiently precise in communicating this to the Berkals in writing. If there is any fault here in explaining the Crown's role in this matter, then it arguably lies on the Crown not on the Berkals or Marsha Palansky. The Berkals and Marsha Palansky as members of the public ought not to be expected to understand the exact role of the Crown vis-a vis a police investigation unless it was laid out in writing to them clearly.
The Crown could have and (in my view should have) written to the Berkals that the Crown was staying the matter-period full stop, without using the words "pending further investigation" in the email of Feb 12
McDuff wrote to the Winnipeg Jewish Review :" As you can imagine, that particular email [the one sent Feb 12] was the last in a long chain of communication and was clearly taken out of context."
In response to this , Harvey Berkal has written to the Winnipeg Jewish Review, "But what other context could there be? The meaning is clear on its face."
In my view, if this was the last email communication from the Crown to the Berkals and Palansky, then it was arguably all the more important to be very clear as to what the Crown would be telling members of the public (and presumably saying in Court ) the next morning when this matter was scheduled in Court . The Crown has acknowledged that this matter was reviewed by several senior Crown attorneys, which in my view is all the more reason why the Berkals and Palansky ought to have received a clear email indicating that the Crown was staying proceedings and had no further role at all in this.
I have asked McDuff specifically whether the Crown has anything in writing that was sent by the Crown to [the Berkals and Palansky] to say that the Crown was sending the file to the police only as a favour, or as a "courtesy" and that they ought to in no way assume that the Crown was supportive of a police investigation one way or the other. The Berkals and Marsha Palansky say they never received any written communication to that effect .
Macduff wrote to us "No, nothing in writing was provided. This was discussed during our meeting with the Berkals and Mrs. Palansky prior the private prosecution being stayed. Both myself and one of our Directors, Michele Jules were present at that meeting. Referring matter to police was an option that was provided to them which would allow for a more thorough investigation of the matter."
The Berkals have told the Winnipeg Jewish review it was the Crown who "suggested/initiated" the idea that they could file a complaint to the police, and not they who raised the suggestion. Harvey Berkal has written that no one " had thought of going to the police until Colleen suggested it." The Crown did not respond to the Winnipeg Jewish Review in a way that directly contradicted what Harvey Berkal has said on this point.
The Crown was the one who physically directed that the file leave their office and be sent somewhere to the police department. Ask yourselves, who directed exactly where the file was to be sent? The Berkals say that the Crown was the one , not they, who directed where the file would go in the police department. They say they never raised the idea of sending it to the homicide division or any other particular division (it is now in the Major crimes division) --The party directing where the file was sent to go, according to the Berkals was not them at all, but the Crown.
Mcduff has confirmed this, writing to the Winnipeg Jewish Review, "That is correct and part of the reason I thought it would be of assistance for our office to forward the file along. It was initially going to be sent to the Vulnerable Persons Unit but once they became aware of the details they suggested it be forwarded to homicide. As it turns out, the file made its way to the Major Crimes Unit within which the Homicide division is located."
I asked McDuff if is it the Crown's position that the Crown would have physically sent the file (as it did here) to the police even if after examining this file (as the Crown did for almost 2 months) it was of the view that a police investigation in this matter was going to be frivolous and vexatious.
McDuff answered "Any individual can bring a criminal complainant to police and this is an option we suggested to the Berkal’s and Mrs. Palansky. While we have no idea what will come of the police investigation, had we felt there was no point in their doing so it would not have been a recommendation that we would have made."[emphasis added]
In my view, this last point is key in understanding what has happened. Based on this answer in writing from the Crown, I do not think that it is fair for any of our readers to conclude that the Crown reviewed this matter and thought that a further police investigation in this matter was frivolous and vexatious. Based on this, it would be wrong to conclude in my view that the Crown viewed the Berkals and Palansky simply as troublemakers.
In a press release the Berkals issued Feb 12, they said that the Crown has indicated that it was surprised that an inquest hadn't been called into the death of Lilian Peck. McDuff has confirmed to the Winnipeg Jewish Review that "We did indicate in our meeting that we were surprised an Inquest hadn’t been called. I am unaware of the details related to this but the fact an autopsy was not conducted may have played a role."
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