Supreme Court asked to allow more bail information

Monday, November 16, 2009

Mike De Souza, Canwest News Service

Felicity Don/Reuters

OTTAWA -- Lawyers from the Edmonton Journal and other media organizations on Monday asked the Supreme Court of Canada to loosen restrictions on what the public has the right to know about evidence presented at bail hearings.

The case was launched following a publication ban at a hearing in which an Edmonton man accused of killing his pregnant wife was granted bail.

"Keeping the public in the dark, in my opinion, can be a recipe for uninformed speculation, fuelling widely publicized concern in the community [and] a far greater risk to the fair trial rights of the accused and the Crown," said Fred Kozak who is representing CBC, CTV and the Journal.

Mr. Kozak said that the publication ban on details presented at the bail hearing deprived the public from being informed in the media about why the suspect, Michael White, had been granted bail at the time.

"People were outraged when he was released on bail," said Mr. Kozak. "People wanted to know the reason why he was released, distressed neighbours feared for their safety and the safety of their children, and others circulated petitions asking that bail laws be changed."

During a bail hearing, the Crown prosecutor will typically outline the nature of the case and the evidence gathered by police, and in some instances, will refer to the accused person's criminal record.

In deciding whether to grant bail, a judge considers whether the accused is likely to return to court or is a danger to the public. The judge also strives to maintain public confidence in the justice system.

Lawyers for some of the suspects arrested in connection with an alleged terrorism plot in Toronto also supported the media's case, arguing that the media ban in their cases prevented them from publicly countering allegations made by police.

The lawyers, including Paul Schabas, who represented the Toronto Star, said the public would have more confidence in the justice system if judges published reasons for their decisions and as much information as possible. But they recognized that they should still be able to ban specific evidence that would affect an accused's fair trial rights.

Lawyers representing the federal government and provincial attorneys general from Alberta and Ontario argued that the existing laws should be upheld to ensure fair trials in the system. They noted that suspects generally don't have a great deal of information about the evidence or the capacity to respond to allegations at bail hearings which are in the early stages of their case, following an arrest.

Jolaine Antonio, who represented the Alberta government, said society would lose if it allowed excessive pre-trial publicity that could potentially influence a jury prior to its selection.

"The Crown at least, doesn't want to meet that first case, where a fair trial is not available." Ms. Antonio said. "That is a situation to be avoided at all costs."

While the media lawyers argued that juries were selected quickly in high-profile murder cases with extensive pre-trial media coverage, such as those of Robert Pickton and Paul Bernardo, the government lawyers argued that the existing laws were the ones that ensured fair trials.

"The very remedy which these opponents seeks would have made that jury selection substantially more difficult, substantially longer and placed under a substantially crumbling cloud, which thankfully, we don't have," said David Lepofsky, who represented the Ontario government.

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Darker side of killer's tale waiting to be told

Worst is yet to be released in grisly serial killing

By Ethan Baron, The Province
March 31, 2009

There are things you don't know about the Robert Pickton case.

You probably know Pickton was convicted of murdering six women, and is accused of killing 20 more. You likely know about the trailer, about the pigs. If you followed the trial closely, you know about the fur-lined handcuffs, the associate with a hole through his throat, the beloved horse Goldy whose stuffed head decorated the wall of the serial killer's squalid abode.

But just you wait. Revelations are coming. I would say, "Brace yourself," but it would do no good. You will not be prepared.

You may wonder, how could this case get darker? Women were killed, dismembered, their body parts left to rot, while the greasy-haired, malodorous killer chuckled and grinned his way through a life of petty enterprise, butchering pigs, pushing dirt, and wrenching on cars.

The case gets darker, all right, but I can't tell you how.

Judge-ordered publication bans imposed for the trial remain in place, preventing the media from revealing information from pre-trial proceedings.

When this information is finally made public depends on the outcome of the appeal process. If Pickton loses his appeal and the case is put to rest, the bans will be lifted and The Province will publish stories that would be hard to believe if they weren't the truth.

If he wins his appeal, and is subsequently tried on the other 20 murder charges, some of the information will come to light in that trial, with the rest spilling out after its conclusion.

So it may be that we can reveal to you, within a matter of weeks, all that you don't yet know. Or it could be years before those stories can be published.

In the meantime, we have this appeal, in which the killer's legal team argues that the trial judge failed to properly prepare the jury to make a decision on Pickton's guilt or innocence. The pig butcher's right to a fair trial was compromised, they contend.

Pickton's trial was hugely expensive and, for many, the appeal appears an added, unnecessary burden on the taxpayer. But clearly, trial judge James Williams gave the defence an avenue for appeal. Williams himself admitted he'd erred in his pre-deliberation instructions to the jury, and he attempted to correct his mistake with an amendment.

The defence's introduction yesterday laid out five grounds for Pickton's appeal, all of them related to Williams' jury instructions and his response to a question from the jury during deliberations.

It's too early to say whether the Pickton team has any chance of persuading the three-judge B.C. Court of Appeal panel that Pickton's six murder convictions should be tossed.

Whatever the outcome, the proceedings that began yesterday are a step toward the day when you will find out the complete story behind Canada's most infamous serial-killing case.

ebaron@theprovince.com

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