By Canadian Press

Manitoba Appeal Court told man’s conviction in drug dealer’s death cannot stand

May 28, 2018 | 1:45 PM

WINNIPEG — A Manitoba man imprisoned for 23 years for first-degree murder before spending the last nine years on probation is on the verge of having his name cleared.

Lawyers for the Crown and defence told the Manitoba Court of Appeal on Monday that they agree Frank Ostrowski’s 1987 conviction in the shooting death of a drug dealer was a miscarriage of justice and cannot stand.

“His trial was unfair,” Crown attorney Randy Schwartz told the three judges hearing the case.

“The parties agree that this case should be terminated permanently.”

The Crown is asking for a judicial stay of proceedings, which would put an end to the case. The defence wants the court to go a step further and formally acquit Ostrowski, now in his late 60s.

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Ostrowski was found guilty of ordering the shooting of a fellow drug dealer and was convicted largely on the testimony of a key witness — Matthew Lovelace — who had separate charges of cocaine possession stayed in exchange.

Ostrowski’s lawyers and the jury were never told about the deal and Lovelace told the trial he did not receive any favours in exchange for his testimony.

Ostrowski’s lawyer told the Appeal Court that the Crown attorney in the original trial, George Dangerfield, crossed a line by not correcting Lovelace when he testified he did not receive a deal.

“He was trying not to cross it. But the reality is he did … by not interrupting and saying, ‘Hang on a sec. Lovelace isn’t telling the truth,’” James Lockyer said.

Ostrowski maintained his innocence throughout his incarceration and, in 2009, a Court of Queen’s bench judge cited serious concerns with the conviction and released Ostrowski on bail. In 2014, then-federal justice minister Peter MacKay ruled the case a likely miscarriage of justice and ordered the Manitoba Court of Appeal to review it.

Schwartz said Monday that while it was wrong to not reveal Lovelace’s testimony deal, it is not clear whether the Crown at the time knew about the deal or whether police had withheld that information.

Schwartz also said there was other evidence that might cause a jury to link Ostrowski to the killing — mainly other witness testimony about his fear that the victim was going to tell police about Ostrowski’s drug activities.

For that reason, Schwartz said, Ostrowski does not meet the legal criteria for a full acquittal.

The Appeal Court judges reserved their decision to an undetermined date. Ostrowski remains under bail conditions for now.

His case is one of a few high-profile wrongful murder convictions that have come to light in Manitoba.

James Driskell was convicted of killing a friend in Winnipeg in 1990. The verdict was based partly on testimony from a witness who was given tens of thousands of dollars in expense payments as well as immunity on an arson charge. The trial was not told about the deal. Driskell’s conviction was quashed in 2006.

Kyle Unger was convicted, based partly on hair samples found at the scene, of killing a teenage girl at a rock festival in 1990. DNA tests years later showed the hair did not belong to him.

Thomas Sophonow was found guilty of killing a waitress in 1981. That was based largely on the testimony of a witness who contradicted in court what she had told police. The defence was not told about the contradiction and Sophonow spent four years in prison before he was freed.

Steve Lambert, The Canadian Press

Note to readers: This is a corrected story. An earlier version incorrectly referred to Crown attorney Randy Schwartz as Schultz in later paragraphs

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