It took more than a quarter of a century for Mounties in British Columbia to make a breakthrough in the killing of 12-year-old Susan Duff. Now, less than a week after arresting the girl's uncle, the resurrected cold case has chilled once again.
To the dismay of Susan's family, Ernest Gardiner, 68, walked out of a Kelowna courthouse yesterday after the Crown announced it was staying the first-degree-murder charge against the onetime logger.
In a surprise move, Crown counsel Brent Bagnall told a bail hearing that prosecutors concluded there was insufficient evidence to obtain a murder conviction against Mr. Gardiner.
Mr. Bagnall added that police laid the charge without first getting approval from Crown lawyers, which is standard practice in the province.
Outside court, spokesman Brad Chapman did not criticize police actions but said the Crown had no choice but to stay the charge.
"We came to the conclusion that the evidence against Mr. Gardiner does not satisfy the Crown's charge-approval standard to substantiate a charge of first-degree murder," Mr. Chapman said.
"The only appropriate and fair thing to do, for Mr. Gardiner, is for the Crown to enter a stay of proceedings ..... not have him in custody and not have him facing this charge."
The news was a devastating blow to Susan's relatives, who just days ago were overcome with relief at the prospect of a break in the decades-old case.
Susan vanished from her home in Penticton on a September evening in 1979 after telling her mother she was going for a bike ride. She was last seen pedalling past her favourite corner store. After a massive ground and air search, the little girl's body was found a month later off a gravel road outside town.
An autopsy did not determine a cause of death.
Yesterday, Susan's older sister, Cindy Pinske, said the family is devastated with disappointment. "We just can't understand it," Ms. Pinske said in a telephone interview.
It has been a roller-coaster week for the family, some of whom had come to believe that Susan's death would never be solved. Mr. Gardiner's arrest brought relief and new hope.
Yesterday, Mr. Gardiner's lawyer, Oliver Butterfield, said police had no new evidence when they arrested the ailing man on Friday, April 15. He was picked up in Penticton shortly after leaving hospital, where he receives dialysis treatment three times a week for a failing kidney.
Mr. Butterfield suggested the arrest was a police fishing expedition, adding that Mr. Gardiner was interrogated 15 hours last weekend after his arrest. An undercover police officer was also planted in his client's cell, Mr. Butterfield said.
"They used the charge and the ensuing detention of Mr. Gardiner to pursue their operational plan of investigating Mr. Gardiner and they detained him in custody for seven days for that purpose," Mr. Butterfield said.
"He was interrogated extremely intensively although he stated repeatedly that he did not wish to be interviewed any further."
The lawyer added: "Some members of the Canadian public might think that would be a misuse of the justice system."
However, RCMP defended their actions. While it is common practice to first seek Crown approval before laying a charge, it is not required by law, Staff Sergeant John Ward said.
The Mountie added that police are "not always in agreement with the Crown, that's why we have the dialogue ..... sometimes we agree to disagree."
Staff Sgt. Ward said he feels for the Duff family but added the case has not been closed.
"I am sure that it must be difficult for the family but we won't rest until we're done," he said.
Once a charge has been stayed, police have a year to reactivate the charge.
"Because we've entered a stay doesn't mean we don't have the evidence, that we're not on the right path. What is means is the Crown has asked us to look at it some more and that's what we're going to do."
Mr. Gardiner is also charged with six unrelated counts of sexual assault against six females in the 1970s. He was granted bail on those charges this week.