On the night of June 2, 2018, after seeing the broken body of New Westminster’s Olivia Malcom on the pavement between his bumper and her family’s smashed Honda Civic, 42-year-old Chao Chen went back to his Jeep Wrangler.
He reached inside, grabbed an open bottle of whiskey and threw it over a fence.
That bottle was never found, but a police officer who arrived at the scene shortly after reported smelling liquor on Chen’s breath, and Deas Island Traffic Services launched a 14-month investigation.
“Because it is being investigated as an impaired driving fatality, the threshold for charge approval is high, and the amount of information needed to meet the charge approval standard takes considerable time to gather,” RCMP E-Division Traffic Services spokesperson Cpl. Mike Halskov told media a month after the crash.
Just over a year later, Surrey Crown counsel approved two charges against Chen: impaired driving causing death and impaired driving with a blood alcohol level over 80 milligrams causing death – both of which carry a maximum sentence of life in prison.
But those charges had effectively vanished by the time Chen appeared in Surrey provincial court last week to plead guilty to the lesser charge of dangerous driving causing death.
Olivia Malcom’s parents want to know why – but no one is talking.
“I’m very angry, and we’re not angry people,” Olivia’s father, Tony Malcom told the Record. “Not once were we asking for a stiffer sentence; we’re not trying to change the laws. We weren’t doing any of that. This is just ‘What happened?’”
‘Substantial likelihood of conviction’
Before approving any charge, the Crown’s job – according to the B.C. Prosecution Services Crown Counsel Policy Manual – is to determine whether there is a “substantial likelihood of conviction” based on the evidence and possible defences or other legal or constitutional barriers.
The Crown made that determination and charged Chen with impaired driving causing death in 2019.
As far as the Malcoms knew, those were the charges he’d face.
Less than two weeks before the scheduled trial, however, Crown prosecutor Jodie Harris announced the situation had changed.
She told the family the Crown would not be able to proceed to trial with the impaired driving charges, according to Malcom. Then she announced they were laying a new charge of dangerous driving causing death, to which they expected Chen to plead guilty.
He did that last Monday – with his lawyer stating Chen “adamantly” denies having been impaired or intoxicated the night his Jeep slammed into Olivia Malcom without braking as she stood with her friend in front of the open trunk of the Civic.
Harris, who up to that point had been great at communicating with the family, according to Malcom, wouldn’t explain what was behind the sudden change.
“Once they said the charges were dropped, she just completely wouldn’t answer any questions or anything,” he said.
Prosecutors insisted to the family there hadn’t been a plea agreement, according to Malcom.
But before Chen pleaded guilty to the lesser charge last week, his lawyer, Michael Mines, noted Chen understood “the Crown’s position” and said, “(Chen) understands ultimately that your honour is not bound by any agreements and that your honour has the ultimate decision with respect to sentence.” And Harris noted later in the proceeding that Mines had suggested the plea “very early on in the life of this file.”
“It’s the Crown’s understanding that Mr. Chen was willing to enter a guilty plea to a count of dangerous driving causing death much earlier than it’s actually been entered, and that’s as a result of actions that had been taken on the part of the Crown,” Harris said.
Why the Crown reversed those “actions” and proceeded with a new charge to which prosecutors knew Chen would be willing to plead is a question that plagues Malcom along with the already immense burden of grief he carries over the loss of his daughter.
In impaired driving cases, the Crown counsel policy manual says prosecutors may only accept a guilty plea to a lesser or different offence if the standard for the impaired driving charge is no longer met, say, because of doubts about the evidence or a potential Charter challenge.
If a charge falls apart, Crown prosecutors are restricted from talking about the specific reasons, but Malcom said Harris has declined to clarify even generally for his family whether that is what happened in Chen’s case.
Speaking to Malcom, it’s clear he’s spent a lot of time, as a result, racking his brain trying to come up with an explanation for what could have happened so close to the start of the trial. Was a breathalyzer test challenged? Was there a Charter challenge?
“We understand that people make mistakes, but why wasn’t this caught earlier?” Malcom said.
The possibility that the new, lesser charge was the result of a plea deal is even more distressing to him, especially given the Crown’s insistence it wasn’t.
“We’re very suspicious something’s going on. We don’t know what.”
The vast majority of criminal convictions in Canada are secured through guilty pleas, according to legal experts, and without plea bargaining, Canada’s justice system would grind to a halt.
But the tendency of plea deals or “resolution agreements” to create mistrust and a sense – especially among victims and their families – that backroom deals between lawyers help criminals get off easy, has long led to calls for more openness about the practice.
In the Martin Report, an often-cited 1993 report for Ontario’s Attorney General, an advisory committee recommended Crown counsel should state on the record in open court that resolution discussions have been held and that an agreement has been reached.
That’s what Crown prosecutors with the Public Prosecution Service of Canada (the lawyers that prosecute federal cases) are supposed to do, according to their policy book.
But no such policy exists for B.C. prosecutors, according to their policy manual, and media spokesperson Dan McLaughlin declined to clarify whether there had been a plea deal in Chen’s case or why the prosecutor couldn’t clarify for the Malcoms, even in general terms, what had happened in the case of the man responsible for their daughter’s death.
“Unfortunately there is little I can add to the information that is included in our policy manual,” McLaughlin said in an emailed response to questions from the Record. “I cannot speak to the application of our policies to hypothetical situations, nor will I discuss the application of our policies to the case against Mr. Chen. As I indicated earlier the BCPS will have no comment on the proceedings while the matter is before the court.”