Convicted Surrey Six cop wins another chance to get legal fees paid

Former Mountie Derek Brassington, convicted of breach of trust, may get his legal fees paid after all

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A former lead investigator in the Surrey Six murder case, who was convicted of breach of trust after having an affair with a potential witness, may get his legal fees paid after all.

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The Federal Court of Canada has granted Derek Brassington’s request to quash a 2019 minister of public safety decision denying him funding even though he was a Mountie when his conduct was first investigated.

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Postmedia earlier obtained a copy of the July 30, 2019 letter denying Brassington payment for his legal bills, which then totaled $255,383.

Justice Ann Marie McDonald said Brassington was denied procedural fairness because it took seven years for a final decision on his request for financial assistance to fight a series of charges stemming from his work on the Surrey Six investigation.

He said he pleaded guilty in January 2019 despite having a reasonable defense to mount because he couldn’t afford the legal expenses for a lengthy trial and had not received a reply to his 2012 legal funding request.

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“The determinative issue on this application for judicial review is whether Mr. Brassington had a fair process for the consideration of his further request for (legal assistance at public expense) funding. I have concluded that he did not,” McDonald said in the ruling released Monday.

“Mr. Brassington did not have a timely consideration of his request nor did the minister have the full record of the information Mr. Brassington provided in support of his (legal assistance at public expense) request.”

She said that in denying the request, the minister “relied upon Mr. Brassington’s guilty plea to justify the refusal of … funding.”

“At the time of the request for funding, the criminal proceedings were ongoing and a guilty plea had not been entered,” McDonald said.

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Brassington received a conditional sentence of two years less as day for the breach of trust and a second count of obstruction of justice.

McDonald noted in her ruling that Brassington needed the funding decision earlier because “it was an important factor for him to be able to instruct his legal counsel.”

“As the criminal charges arose during his service with the RCMP, the possibility of imprisonment posed a unique and significant risk to him. As a former police officer involved in homicide and gang investigation work, he faced the real possibility of imprisonment with inmates who had been incarcerated because of his police work,” the ruling said.

Missing from the records sent to Ottawa for the funding decision were psychological reports related to Brassington’s state of mind at the time of the offenses, McDonald said.

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One of them said “Brassington lost his own sense of self and adopted some of the characteristics of the targets of his investigations. Sgt. Brassington developed some empathy for individuals involved in the gang ‘culture’. Hence, his psychological ability to fully disengage from the targets of his investigation was compromised as a consequence of his investigative involvement.”

Another noted he “was under considerable general pressure to solve high-profile cases” and had to develop rapport with gang-linked witnesses.

“It is no surprise that the line between ‘acting’ and reality became blurred so that the negation of his police identity and his enacted compassion for work targets affected his decision making abilities,” he said.

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McDonald said “the failure of the RCMP to forward all the materials Mr. Brassington submitted … to the minister was a breach of procedural fairness.”

But rather than order the government to cover the ex-cop’s legal bills, McDonald said the issue would be sent back to the minister for “redetermination.”

Meanwhile the misconduct of Brassington and two of his colleagues who were also convicted will be front and center at a special hearing ordered by the Supreme Court of Canada in April.

The court sided with convicted Surrey Six killers Cody Haevischer and Matthew Johnston in ordering the case to be reopened for a special evidentiary hearing into the police misconduct.

The ruling means Haevischer has another chance to get his charges stayed depending on the outcome of the hearing — expected to be held later this year. Johnston died of cancer in December.

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