Shades of Key-Dalzell

Oh doesn’t this sound familiar…

Proceedings stayed in girl’s slaying
RCMP charged man without consulting Crown prosecutors

Darah Hansen
Vancouver Sun; with files from Canadian Press
Saturday, April 23, 2005

PENTICTON – The Crown stayed proceedings Friday against a 68-year-old man police had charged with killing his brother’s stepdaughter in Penticton almost 26 years ago.

Regional Crown prosecutor Brad Chapman announced the stay of the first-degree murder charge against Ernest Gardiner during what was supposed to have been a bail hearing in B.C. Supreme Court in Penticton.

Gardiner was not in court, but was represented by his lawyer, Oliver Butterfield. The killing of 12-year-old Susan Duff attracted province-wide headlines when she went missing in 1979.

Chapman said the RCMP had the charge sworn against Gardiner April 15 without consulting the prosecutor’s office — contrary to normal procedure in British Columbia. After reviewing the case, Chapman’s office concluded the RCMP did not have enough evidence to support the murder charge.

Outside court, Chapman said it is not unusual for the police to lay a charge without going to the Crown.

“There’s certainly circumstances where the police are involved in an investigation, where they have a body of knowledge and an understanding of their investigation that gives them a good idea as to the strength of their case,” he said.

Butterfield disagreed, calling the police decision to circumvent normal charge-approval protocol in B.C. “very unusual” — particularly when, according to the lawyer, police knew the Crown would not prosecute the case on the basis of the evidence then available.

Chapman defended the way the police handled the case.

“The police conducted themselves in this investigation impeccably,” he said.

Butterfield said the reason police decided to lay the charge “was to facilitate their own investigation.”

“They were hoping to get either a confession or some other evidence from [Gardiner] when he was detained in custody,” Butterfield said.

Gardiner spent seven days behind bars charged with the first-degree murder of Duff. During that time, Butterfield said, his client was subject to “intense” interrogation by police and had undercover agents placed in his prison cell in order to collect new evidence in the cold case.
Speaking to media outside RCMP E Division headquarters in Vancouver Friday, Sgt. John Ward defended the actions of Penticton investigators.

“Our members were acting with all the right intentions,” Ward said.

He said the matter remains under active investigation and Friday’s stay of proceedings has done nothing to hurt the case. “We’ve lost nothing here,” he said.

Six charges of sexual assault remain outstanding against Gardiner. The charges date between 1973 and 1979 and allegedly involve girls between the ages of five years and the mid-teens.
Stan Lowe, spokesman for the provincial Crown, said his office has yet to review those charges, which were sworn April 15, again without prior approval by Crown counsel, the same day police charged Gardiner with murder.

Gardiner is currently on bail on those charges. His next court appearance is scheduled for May 23.

Susan Duff was last seen alive on Sept. 26, 1979, after eating supper with her family at their home in a Penticton mobile home park. At 5:30 p.m., she went outside to play with her sister and was last seen pedalling away on a bicycle.

A family picking mushrooms found Duff’s fully clothed body among trees and rocks on Oct. 21, 1979. Her three-speed Mustang bike was found in the bushes a short distance away. Also found were a man’s brown leather glove, a string of tape and a half-metre length of yellow nylon rope.
Police believe the body had been there since the girl disappeared almost a month earlier. An autopsy performed at the time failed to reveal the cause of death.

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