Canadian Crown Attorney Should Have Eaten His or Her Wheaties RE Serial Suicide Killer Prosecution

I remember last year doing research on the theory of parental alienation and the role it plays in custody hearings, and thinking how wonderfully complex from an interpretive standpoint the law by which such trials are adjudicated can be.

Specifically, the fact that rather than being static, laws much like an elastic band are actually meant to be challenged or stretched as a means of maintaining their veracity in terms of reflecting our collective social mores.

However, and like the proverbial Rubik’s Cube, for many this very elasticity of subjective interpretation can be frustrating in and of itself.  The frustration level can of course increase based on the absence of connecting logic to support a particular decision.

A perfect example of this very observation came up in my most recent discussion with Nadia Kajouji’s mother Deborah Chevalier.

As you already know based on this blog’s extensive coverage, Nadia Kajouji of Ottawa and Mark Drybrough from Coventry in the UK both committed suicide at the encouragement of Internet predator William Melchert-Dinkel, whom I have called the Serial Suicide Killer.

Melchert-Dinkel, a resident of Faribault, Minnesota has been charged with two counts of violating that State’s Suicide Aiding law 609.215 subd. 1, for which the penalty is “imprisonment for not more than 15 years or a fine of not more than $30,000 or both.”  He is currently facing trial in Rice County, Minnesota.  The trial has yet to start, which is an important point that I will come back to again shortly.

Reading through the actual complaint, Melchert-Dinkel not only admits to playing a role in the deaths for which he has been charged, as well as potentially three others – bringing the total to five possible victims, he also stated that he recognized the questionable “moral” and “ethical” implications of his actions as a suicide advocate and, that he “thought assisting suicide was illegal, and that it was illegal in Minnesota.”   (Note: in an upcoming post I will present the highlights from the actual complaint and what they mean from the standpoint of the prosecution.)

Suffice to say, there is little question as to Melchert-Dinkel’s “role” in the deaths of both Nadia and Drybrough.

The question that does remain is simply this, why isn’t Melchert-Dinkel facing trial in Canada, which is where his nearest victim (at least by what we know at this point in time) lived?  You would think that given the fact that 18 year old Nadia is from Ottawa, the Crown Attorney here would have been chomping at the bit to extradite The Serial Suicide Killer and bring him to justice in this country.  Especially taking into account the opinions expressed by MP Harold Albrecht during my August 31st interview with the Deputy Government Whip (PI News Flash: Cyberwar and the Emergence of the Borderless Predator).

Mr. Albrecht, whose unyielding determination and commitment led to the passing of Motion 388 which “urges action against those who counsel or assist in suicides, specifically targeting those suicides that are promoted through the internet,” while admitting that he wasn’t a lawyer indicated that he was “fairly confident that had this occurred in Canada that we would not have waited this long” to lay charges.  In short, Canada would have moved much faster relative to laying charges against Melchert-Dinkel.

This of course is where the Rubik’s Cube conundrum comes into play.

As it turns out, and referring to an e-mail she recently received from Ottawa Police, rather than moving faster, the Crown Attorney in Ottawa informed Deborah that they had decided not to pursue the case citing amongst other things double jeopardy, resulting in an inability to prosecute Melchert-Dinkel because he is facing trial in the the US.

There was also references made to the US – Canada extradition treaty, which purportedly prevents Melchert-Dinkel from being tried here in Canada for the same offenses he is facing in the US courts.  Interesting, but is it really an accurate reflection of the facts or, is it subject to the elasticity of interpretation where the will to try a case (or lack thereof) is the determining factor.

Well, let’s look at the double jeopardy angle being presented as a reason for not extraditing Melchert-Dinkel to face trial in the country of one of his victims.

According to one legal opinion dated May 14th, 2009, there is no “double jeopardy prohibition if a case is still pending trial.”  In this specific example (Extradition of Ye Gon— F.Supp.2d —-, 2009 WL 1311495D.D.C.,2009) a federal magistrate had certified Mr. Ye Gon for extradition to Mexico, while his criminal case was still pending in the United States.

Again, and I want to remind you that I am not a lawyer but, according to Non Bis In Idem or “Not twice for the same thing.”  in Black’s Law Dictionary 1051 (6th ed.1991), Article 6 of the extradition Treaty in question provides: “Extradition shall not be granted when the person sought has been prosecuted or has been tried and convicted or acquitted by the requested Party for the offense for which extradition is requested.”

Of particular interest in this specific case is the past tense reference relating to the “has been prosecuted” or “has been tried and convicted or acquitted” that was ultimately the deciding factor.  “Phrased as it is in the past tense,” contends the article’s author the words “has been prosecuted” should not be interpreted to “encompass the yet-to-be completed criminal case in the United States.”

As far as I know the Melchert-Dinkel trial as yet to be tried.  Even if it were tried and a verdict delivered, that wonderful elasticity of the law means that not even the above interpretation is bullet proof as demonstrated by Canada v. Schmidt, [1987] 1 S.C.R. 500.

According to case records, the defendant in the case, Helen Susan Schmidt a Canadian citizen, was charged along with her son and his friend with kidnapping a young girl in Cleveland, Ohio in 1982 claiming that the child was her granddaughter.

As kidnapping in the United States is a Federal Offence, she was tried at the Federal level on this charge, while Ohio charged her with “child stealing” which is an offence in that state.

In 1982 she was acquitted of the kidnapping charge, but fled to Canada prior to the start of the state trial for child stealing.  Even though facing the child stealing charge was not considered to be double jeopardy after her acquittal on the kidnapping charge according to the Fifth Amendment to the United States Constitution, Schmidt  fought the extradition as a violation of double jeopardy rights under section 11(h) of the Canadian Charter.”

Schmidt ultimately lost her case, and in citing his reasons Justice Gerard La Forrest wrote, “I do not think our constitutional standards can be imposed on other countries.” The majority found that the charge would be in accordance with “traditional procedures” in Ohio. Finally, it found that “It is interesting that, as we saw, the United States Supreme Court has repeatedly held that successive prosecutions at the federal and state level do not automatically offend against the due process clause, the spirit and content of which bears some resemblance to s. 7 of the Charter, although the courts would act to prevent oppressive behavior.”

What the above case references provide is an example of the subjective interpretations to which I had previously referred, which would tend to indicate a tentativeness on the part of the Crown Attorney more than an absolute legal imperative.

To start, why wasn’t the Crown more proactive in pursuing the extradition of Melchert-Dinkel for his admitted role in the death of a young Canadian woman and, in the process, provide her family with an opportunity to sit in on the trial and face the accused in their own country.  After all, the crime was committed against a Canadian, and violated our laws.  In this instance I point to MP Albrecht’s belief, which likely reflects the majority of Canadian sentiments, that with even a modicum of ambition the Melchert-Dinkel proceedings should have been much further along than they are at present.

As I had also indicated earlier, the trial has yet to actually start as it appears that we are still at the motion stage, which includes an August 10, 2010 Motion for Rule 20.02 Mental Examination submitted by Melchert-Dinkel’s attorney Terry A. Watkins.

Specifically, and pursuant to Rule 20.02, subd. 1, of the Minnesota Rules of Criminal Procedure, Watkins is seeking to “appoint a medical examiner and order that a medical examination be conducted on the Defendant, William Francis Melchert-Dinkel, to determine if, because of mental illness or deficiancy, the Defendant at the time of the commission of the offense charged was laboring under such a defect of reason as not to know the nature of the act constituting the offense with which the Defendant is charged or that it was wrong.”  In short, an insanity plea.

While I will review the insanity plea in the next post, at this point it is worth noting that Minnesota adheres to the M’Naghten Rule, which places the burden of proof directly on the defendant relative to mental incapcity.  This is not likely to fly for a number of reasons, but again I will cover this in greater detail next time.

As for the hear and now, and citing the (Extradition of Ye Gon— F.Supp.2d —-, 2009 WL 1311495D.D.C.,2009.) and the reference to past tense, double jeopardy should not be a significant issue especially if Canada took a hard stand to bring to justice an accused predator and killer who harmed one of its own citizens.

While the Canada v. Schmidt, [1987] 1 S.C.R. 500 case is not as compelling as the double jeopardy provision for pursuing extradition, it nonetheless illustrates the subjective nature of the law, even within the international arena.  After all, Schmidt faced two different charges for what amounts to the same crime.  Perhaps the Crown might be inclined to investigate a charge of depraved indifference?

In short, if the Crown Attorney had demonstrated any gumption and pursued extradition right out of the gate, while maybe not a slam dunk, we would likely be following the trial here in Ottawa instead of placing our hope on a prosecutor in another country which is also home to the accused.

All this being said, it is still not too late for the Crown to do the right thing.  Let’s just hope that they read this, eat their Wheaties tomorrow morning and take action.

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