News: High profile trials and social media

Social media seems to be expanding exponentially; the outlets seem almost limitless - Twitter, Facebook, LinkedIn, Tumblr, Reddit, StumbleUpon, Delicious and Digg - just to name a few.  This ever growing world of social media is now regularly intersecting with the criminal justice system.  Reporters are now tweeting, facebooking or sending Diggs from the courtroom, providing up-to-the minute information.

Two current cases are good examples of how social media is providing almost instant access to more information than has ever been available before - one is the Ottawa trial of Kevin Gregson charged with first-degree murder in the killing of Ottawa police officer Eric Czapnik; the other is the London trial of Michael Rafferty charged with first-degree murder in the killing of 8 year old Tori Stafford. 

In the Gregson trial there was actually a ruling from the judge permitting reporters to tweet about the case: see Ottawa Citizen Article by Gary Dimmock.  Now regular tweets keep the public informed and up-to-date about each day, witness and key moment of the trial: see for example Catherine Lathem tweets.

Similarly in the Rafferty trial, the London Free Press offers updates throughout the day. 

Is it too much?  Does everyone want or need to hear all these details, get all this information; have it provided in all these different outlets and media sources?  To be certain, media attention and information about criminal trials is good for the criminal justice system.  The more media attention, the more information provided and the more accessible that information is the more informed and involved the public will be in the criminal justice system.  Media attention also triggers debate, healthy debate, about the criminal justice system.  Check out, for example, the number of comments and re-tweets of Christie Blatchford's article, "Incredibly, defence tries to blame Tori's mom" - in which she criticizes, or at least comments upon the defence "slyly" placing some responsibility on Tori's mom.  You may not like what she has to say, you may totally agree with it - regardless, her article has got people talking, about the criminal justice system, trial tactics and lawyers.  Finally, it is certainly better to have more voices discussing and reporting upon a case; the more insight, the more information, the more likely it is the public will see the truth, understand the system and hold it and those working within it accountable.

Perhaps the one downside to the abundance and accessibility of social media is when it impacts on those making decisions in some criminal trials: jurors.  In an article in the Wall Street Journal, Juror's Tweets Upend Trials, Steve Eder reports about cases in the United States where verdicts have been overturned due to improper access to social media by jurors.  Eder also reports that defence counsel in a case in California are seeking a juror's Facebook records in pursuit of an appeal of their convicted client.

Albert Einstein once said, information is knowledge; I agree.  Tweet, Reddit, Blog, Facebook, so long as you're not a juror!

 

DG Mack

New & Notable: Unsavoury witnesses come in different shapes and sizes too

Zacky Deleon, Michael Allen and Jamie Restrepo were all convicted of first-degree murder.  The murder involved the execution style killing of Mauricio Castro.  The Crown's theory was that Restrepo was the leader of a drug network that owed approximately $1 million to Castro.  Restrepo arranged for the murder of Castro, Allen was the shooter and Deleon was involved in the enterprise.

During the trial the Crown relied upon, inter alia, three witnesses: Jorge Restrepo (Jamie's brother); Jorge Acosta (alleged to be the get away driver); and Ronny Khananisho (connected Restrepo to Allen).

On appeal the appellants took issue with the Vetrovec warnings; the Court of Appeal dismissed the appeals: 2011 ONCA 752.

 

In dismissing the appeal the court addressed the argument that the trial judge erred in not providing Vetrovec warnings for all three of these witnesses and also for comparing the witnesses and giving varying levels of warnings.  While the court noted that it would be preferable not to use comparisons it concluded there was no error in the charge:

In this case, we can see no error in the continuum adopted by the trial judge in his treatment of the three main Crown witnesses.  The warning about Acosta was very strong indeed.  The appellants do not challenge it.  The warning about Restrepo was milder but encompassed all four elements of the standard Vetrovec warning.  The absence of a warning about Khananisho was justified by his very peripheral role in the murder enterprise (he provided Allen’s phone number to the Restrepo network and attended a meeting with Allen during which Deleon spoke to Jaime Restrepo) and the absence of a history of lying or other dishonest behaviour.  In our view, it may be preferable to give discrete Vetrovec warnings that do not specifically involve a comparison – particularly in the positive terms employed by the trial judge.  However, given the nature and extent of the trial judge’s references to the unsavoury characteristics of these witnesses, the jury would clearly understand that they had to examine their evidence with caution [para 7].

The court also addressed the argument that the trial judge erred in his handling of the confirmatory evidence.  In dismissing this ground the court noted that simply because evidence was not disputed did not mean it could not be confirmatory.  The court offered the following passage from R v Kehler, 2004 SCC 11 at paras 15-16 in support:

The appellant wrongly equates “relevant” with “disputed”.  Mr. Greenwood’s detailed account of the robbery, though undisputed, was no less “relevant” to the offences charged than his implication of the appellant in their commission.  And while confirmatory evidence should be capable of restoring the trier’s faith in relevant aspects of the witness’s account, it hardly follows that the confirmatory evidence must, as a matter of law, implicate the accused where the only disputed issue at trial is whether the accused was a participant in the crimes alleged.

As the appellant himself concedes, it is clear from Vetrovec, supra, that independent evidence, to be considered confirmatory, does not have to implicate the accused.  There is no separate rule in this regard for cases where the only evidence of the accused’s participation in the offence is that of a tainted witness. [Emphasis in original.]

 

DG Mack

Pending and Prominent: Niqabs and the Criminal Justice System

Niqabs have attracted much attention in the last few years.  Bans and debates about them are everywhere.  On Thursday, December 8, 2011, the Supreme Court heard argument about whether a witness, NS, should be permitted to wear a niqab while testifying at a preliminary hearing.

NS is the complainant in a sexual assault proceeding of two men, her uncle and cousin.  At the preliminary inquiry the accused sought to have her remove her niqab.  The preliminary inquiry judge conducted an informal inquiry into the reasons for the niqab.  This inquiry took place without NS having had an opportunity to speak to counsel or seek advice - something the Crown suggested should have taken place.  Ultimately the preliminary inquiry judge ordered that she remove the niqab. 

NS sought relief by way of extraordinary remedy in the Superior Court.  While that court quashed the order it also remitted it back to the preliminary inquiry judge for reconsideration: 2009 CarswellOnt 2268 (SCJ).  NS appealed that order to the Ontario Court of Appeal.  That Court also ordered that the initial order of the preliminary inquiry judge be quashed.  That court also, however, sent the matter back to the preliminary inquiry judge for reconsideration: 2010 ONCA 670.  NS appealed to the Supreme Court.  That Court has reserved.  

The interest and controversy over this issue is apparent from the number and scope of parties that had status at the Supreme Court.  In addition to NS, the accused and the Crown, the following "other parties" had status:

• Ontario Human Rights Commission
• Barbra Schlifer Commemorative Clinic
• Criminal Lawyer's Association (Ontario)
• Muslim Canadian Congress
• South Asian Legal Clinic of Ontario
• Barreau du Quebec
• Canadian Civil Liberties Association
• Women's Legal Education and Action Fund
• Canadian Council on American Islamic Relations

The issue is complicated.  The views are extreme and the debate is passionate.  Consider, for example, the view set out by the Muslim Canadian Congress (one of the parties) on their website: 

THE MCC dismissed the argument that wearing of a face-mask by Muslim women is protected by the Charter's guarantee of religious freedom.  The MCC said, there is no requirement in the Quran for Muslim women to cover their faces.  Invoking religious freedom to conceal one's identity and promote a political ideology, is disingenuous.

The ruling could have significant impact.  Its implications will likely go beyond the specific issue before the Court. 

For now, the ruling that governs the issue is from the Court of Appeal.

The Court of Appeal first dealt with the issue of the powers of the reviewing and appellate court.  The court clarified that while only jurisdictional errors are reviewable where the Crown or the accused is the moving party, where a third party is involved the reviewing court may consider both errors of law and jurisdiction:

However, where the moving party on the extraordinary remedy application is a "third party", that is a party other than the accused or the Crown, and the challenged order finally decides the rights of the third party, extraordinary remedy relief will lie on the mroe traditional grounds of both jurisdictional error and error of law on the face of the record: Cunningham v. Lilles (2010), 254 C.C.C. (3d) 1 (S.C.C.), at paras. 57-58; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 (S.C.C.), at pp. 864-67 [para 23].

The court further explained that the reviewing standard is correctness. 

Turning to the issue of the jurisdiction or power of the preliminary inquiry judge the court held that the judge did not have remedial jurisdiction under the Charter but could consider Charter values "when exercising statutory powers granted" [para 29].  Accordingly, the court held, the preliminary inquiry judge had the jurisdiction, to control its proceedings, to consider the issue, taking into account Charter values, and decide the issue.

Turning to the correctness of the decision made, the court held that as a first step the court must assess the genuineness of the witness' claim.  If the witness has advanced "a valid religious right claim" then the judge must move to the next inquiry [para 71].  The second inquiry will be to determine the extent, it at all, the wearing of the niqab would interfere with the ability to cross-examine [para 71].  If the court finds that both interests are sufficiently engaged a balance of the competing interests must be undertaken in a contextual manner [paras 73-74].

In the present case the court held that the preliminary inquiry judge erred.  The judge erred by failing to make a full and formal inquiry in the religious belief and failed in not providing the witness an opportunity to consult counsel prior to the inquiry [paras 90-94]. 

The court then ordered the matter returned to the preliminary inquiry judge for the purpose of making the inquiry outlined and a decision based thereon.

 

DG Mack

Comment: Respecting Our Jury System

Juries are a fundamental part of our criminal justice system.  Trial judges and appellate courts should treat lightly, it at all, when they purport to speculate about the possible impact errors or omissions may have had upon a jury.  In the recent case of R v Sahota, 2011 ONCA 679 the Court of Appeal refused to engage in such speculation.  

Jaswinder Sahota was charged with offences relating to the discovery of heroine in a suitcase he possessed as he entered into Canada.  He was tried before a jury.  During deliberations the jury had a question; they asked if they could have transcripts of counsel's closing addresses.  The trial judge, with the agreement of both counsel, advised they jury they could not and should rely upon their collective memories.

The next morning the Crown brought to the attention of the trial judge cases which suggested the jury should have been told they could have listened to the closing addresses of counsel.  Despite an objection by defence the trial judge intended to advise the jury of this option.  The jury, however, advised it had come to a decision.  The trial judge brought in the jury and advised them that they had the option to listen to the closing addresses before delivering their decision.  After considering this the jury indicated it was still prepared to deliver its decision and it did, finding Sahota guilty. 

On appeal the court noted that the trial judge erred and should have let the jury listen to the closing addresses.  The Court of Appeal, in dismissing the appeal, offered the following:

The trial judge made it clear that the jury could listen to the closing addresses before reaching their verdict. They saw no need to do so. We will not speculate as to why they chose that course of action. In the end, before the jury returned its verdict, the jury understood that it could listen to the addresses if it wished to do so. The trial judge ultimately answered the jury’s request correctly. The timing of his answer did not result in any unfairness to the appellant [para 9].

 

DG Mack