The Magnotta Case And The Exclusion of the Public

The details of the allegation are disturbing: a scandalous luring of a University student, a gruesome murder, a grisly dismemberment, and then a twisted disposal of the body parts, via mail, to elementary schools. Then the chase across Europe and odd sightings of a man, we know as Luka Magnotta, until the capture is made, almost innocently, as Magnotta in a German Internet Café surfed the web for the disturbing details of his own case. In a previous post, I discussed the extradition issues with the case but Magnotta, by consent, returned quietly to Canada to face a number of charges, including  first-degree murder under s. 231 of the Criminal Code, committing indignities to a human corpse under s.182 of the Criminal Code, mailing obscene materials under s.168 of the Criminal Code, publishing obscene materials under s.163 of the Criminal Code and threatening Prime Minister Stephen Harper under s.264.1 of the Criminal Code.

Now, with the start of Magnotta’s preliminary inquiry, the case is back in the media spotlight as Magnotta’s defence attempts to exclude the media and public from hearing the preliminary inquiry evidence. Today, Quebec Court Judge Lori-Renée Weitzman denied the defence request.

But what was this request all about?

A preliminary inquiry, as I explained in a previous post, is a procedure to determine if there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. This vetting process is permitted for only those indictable offences, which the accused has elected to be tried before a superior court judge. The hearing is heard before a provincial court judge who hears the evidence and decides whether to commit the accused for trial on the charges or any other charges arising out of the evidence or to discharge the accused for the lack of evidence on an essential element of any of the charges. It should be noted that the “right” to a preliminary inquiry is not absolute. The accused can waive the preliminary inquiry and consent to committal on all or some of the charges. The Attorney General can also circumvent a preliminary inquiry by preferring a direct indictment under s.577 of the Criminal Code. In that case, no preliminary inquiry takes place and the matter proceeds directly to trial in superior court.

The powers of a judge sitting as a preliminary inquiry judge are many and varied and set out in s. 537 of the Criminal Code. As a matter of course, the preliminary inquiry judge will order a ban on publishing the evidence heard under s.539 of the Criminal Code. This is done to preserve the integrity of the trial process, particularly where the trial will be before a judge and jury. A publication ban will ensure that the public remains impartial and ensures that evidence, which might become inadmissible at trial, is not within the public domain. However, such a ban on publication does not include a ban on the public attending the inquiry to hear the evidence first hand. It merely bans publication or distribution of such evidence heard.

The Magnotta defence, however, wanted the judge to go that extra step by banning the public from attending the inquiry under s.537(1)(h), which gives the judge the power to “order that no person other than the prosecutor, the accused and their counsel shall have access to or remain in the room in which the inquiry is held, where it appears to him that the ends of justice will be best served by so doing.” There is also a general power to exclude the public under s. 486 of the Criminal Code on the basis that the judge “is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.”

Although the reasons for dismissing the application has yet to be released online, it is instructive to review two other equally disturbing infamous cases of Paul Bernardo and Robert Pickton, where somewhat similar requests were made, in an attempt to understand the dynamics of such an application. In Pickton, the defence made a motion for exclusion of the public on the basis the case was so media intensive and with thestate of modern-day publication technology,

” a simple ban on publication of the evidence would not serve the ends of justice and would not preserve the accused’s right to be tried before a fair and impartial tribunal. This was particularly so, submitted the defence, as the American media was not bound to the order and could, therefore, publish the evidence thereby tainting the jury pool once the matter came to trial. In dismissing the application, except for permitting the usual ban on publication, and leaving open the defence’s right to re-open the application, Judge Stone recognized “the conflicts which arise between our tradition of open access to the courts and the principles encompassed by the right of freedom of expression versus the rights provided to an accused person in order to ensure that he or she receives a fair trial.” Even in that context, Judge Stone recognized, as emphasized in the Supreme Court of Canada Dagenais case that such an order was “exceptional.” Ultimately, Judge Stone agreed with Justice Oppal of the British Columbia Supreme Court, wherein Justice Oppal stated in the Murrin case: We live in an era that is often marked by high degrees of pretrial publicity which often features revelations of prejudicial pretrial evidence. In fact, it can be safely said that sometimes media coverage can be described as frenzied. However, I do not think that the justice system is so fragile that appropriate corrective measures cannot be taken in certain cases so as to ensure that an accused's right to a fair trial is not jeopardized.

In the end, the Judge released a very specific ban on publication, specifically prohibiting the information to be placed on the Internet. As an aside, in the 1996 SCC Canadian Broadcasting Corp. v. New Brunswick (Attorney General) case, the SCC sets out specific factors in considering such a ban in light of the conflicting Charter rights of an accused's right to fair trial and the right to public access to our criminal justice system as well as freedom of the press under s.7 and s.2(b).

Conversely, in the Bernardo case, it was the Crown and the families of the victims, which requested an order prohibiting the public from hearing and watching the videotape recordings of the crime when presented as evidence in court.  The court permitted this limited ban out of public decency and respect for the victims. Ultimately, the tapes were destroyed.

Of course, although the application was dismissed for Magnotta, this will not be the end of the matter. As the case goes to trial, there will, no doubt, be a revisiting of this issue of publicity and publication of the case in the media. At that time, the issue will be whether or not an impartial jury can indeed be found in light of the intense media exposure of the case and ultimately whether even the worst allegations can produce a fair trial.

The Canadian Spy, Bail Reviews, and Preliminary Inquiries

Jeffrey Delisle, the naval intelligence officer charges both under the Security of Information Act and the Criminal Code, will have a preliminary hearing on those charges starting on October 10, 2012. For a full review of his charges, a discussion of other infamous Canadian spies, as well as a primer on the Official Secrets Act and the legislation now enacted to replace that Act, the Security of Information Act, read my previous posting on the issue Spy vs. Spy. For a discussion of Mr. Delisle’s bail hearing see my posting Blog Update: The Spy and the Pamphleteer.

This date seems rather late considering Delisle was denied bail and has been in custody since his arrest in mid-January, 2012. By the time Delisle has his preliminary hearing, he would have been in pre-trial custody, which is much harder time than serving a sentence, for nine months. Considering this, it would not be surprising if Mr. Delisle’s counsel will launch a bail review under s. 520 of the Criminal Code.

Such a review is heard by a Superior Court Judge. In this instance as the matter is in Nova Scotia, a bail review would be before a Nova Scotia Supreme Court Justice. In such a bail review, the Judge considers any relevant evidence, both written and oral, the transcript of the previous bail hearing, any exhibits filled at the previous bail hearing, and such additional evidence as either the Crown or the defence may offer.

On a bail review, counsel may argue that the previous order denying bail was based on a legal/factual error. Such argument would be based on transcript evidence and legal argument. Or the defence might argue a material change in circumstance has occurred since the previous hearing. This argument would include affidavit evidence or even vive voce evidence, which would involve calling witnesses at the review hearings. When this occurs, the bail review becomes essentially a new bail hearing. The onus of proof on a bail review is on the party who brings the application; in this case it would be the defence. It is therefore the defence who must satisfy the reviewing Judge that judicial interim release is appropriate.

There is also a provision in the Criminal Code, under s.525 for an automatic bail review if an accused has been in custody, in Delisle’s case, for more than ninety days. Considering the length of time he has already been in custody, six months, one can assume such automatic reviews have occurred. Although, these reviews are automatic, in order to ensure an accused does not languish in jail unnecessarily and in order to preserve the presumption of innocence, defence counsel can waive or pass on the right to an automatic review. This would be done if the prospect of bail seems slim. However, in such an automatic review, the reviewing judge does consider the delay in the matter coming to trial and the reasons for the delay. The longer the accused sits in pre-trial custody, the more likely the accused will eventually be released. However, in those complicated cases, which require much effort to get ready for trial, the courts will tolerate longer delays.

In Delisle’s case, because of the severity of the allegations, a trial date was not set but a preliminary hearing date. Additionally, Delisle elected to be tried by judge and jury once the matter goes to trial. Such an election is typical as the defence can change that election to a Judge alone trial after the preliminary hearing. It is far simpler to elect down to a judge alone trial than it is to elect up to a judge and jury, hence the election is usually for judge and jury.

It is important to understand that a preliminary hearing is not a trial where guilt and innocence is at issue. Traditionally, the sole purpose of the preliminary hearing is to ensure there is enough evidence to put the accused to trial. It is another safeguard to ensure the accused is fairly tried. If there is insufficient evidence, the defence will ask for a discharge of the accused at the preliminary hearing. If this is granted, the charges are dismissed and the accused is released from custody and no longer is charged with a criminal offence. If there is sufficient evidence, the judge will order the accused to stand trial in the superior court.

A preliminary hearing is heard in the lower level or provincial court. In order for the judge to make a determination of sufficiency of evidence, the Crown, who has the burden to show why the charges should proceed, calls witnesses to give evidence. The defence then has a right to cross examine the witnesses, which brings us to the ulterior reason for a preliminary hearing: to act as a discovery of information on the case, which will assist in preparation for evidence and to “pin down” witnesses on their evidence. This “pinning down” or defining clearly under oath and the record a witness’s evidence is important for trial. If a witness later changes his evidence, the fact at on an earlier occasion, when the matters were more fresh in the witness’s mind, the witness gave different evidence, will go to the credibility or believability of the witness at trial. Also, should the witness abscond or disappear, the earlier evidence given under oath at the preliminary hearing may be read into evidence at trial.

Despite the importance of the preliminary hearing to the full answer and defence of an accused, there have been calls to abolish the practice both in Canada and in other Commonwealth jurisdictions such as Australia. Some Caribbean Commonwealth countries, such as Trinidad and Tobago, have abolished the hearings. Indeed, in the UK, where the concept originated, as of April 2012, preliminary hearings or, as the English call them, committal hearings have been abolished. The changes are being phased in, with some jurisdictions still following the old system. Instead, the Crown is obliged to ensure full disclosure of the case is given to the accused in a timely fashion. Obviously, this safeguard cannot possibly take the place of a cross examination at a preliminary inquiry. In the United States, which does not follow the English common law tradition, under certain circumstances, there are preliminary hearings.

What will this mean for Mr. Delisle? In October, Mr. Delisle should be able to test the government’s case and determine the sufficiency of the evidence against him. The public however will not be privy to that information. Typically, the court on a preliminary hearing will order a ban on publication of the evidence heard, in order to ensure that no potential jurors are pre-disposed by the committal evidence. Additionally, the Crown may shut down the preliminary hearing at anytime during the course of it or even not hold the hearing at all, choosing to directly indict the accused to superior court. This tactic is helpful if the case is complicated to present or if the investigation is ongoing. There is, therefore, a possibility that Mr. Delisle will not get his “day in court” until trial. Until October, the story of the Canadian Spy will continue.