This week I write to you from the Ryerson library in downtown Toronto. Last weekend, I competed in the Gale Cup Moot on behalf of Dalhousie. Moots are sort of like debate competitions for law students. We argued a real case, R v Fearon, in front of real judges. It was a lot of fun even though we didn’t make it to the final round, and we took home a second-place factum prize. Thanks to the organizers for a stellar event.
I spent Tuesday morning in Toronto’s Superior Court of Justice watching preliminary motions in a murder trial. Isn’t that what you do on vacation? Roderick McIntosh, now 69, is charged with the second-degree murder of Brent Gartner, 51. On Tuesday, Justice Brown heard submissions from Crown and defence about whether or not McIntosh could sit behind his lawyers at counsel table rather than in the prisoner’s box. It was one of those small matters that calls to mind the larger issues faced by participants in our justice system.
Defence counsel argued that McIntosh could not fully participate in his own trial, expected to be six weeks long, without being able to sit near his lawyers and make notes at a table and chair. The defence also submitted that the presumption of his innocence was at risk, as the jury might draw an inappropriate inference of guilt by seeing McIntosh set apart in a secure box.
The Crown opposed the motion, arguing that the jury could be cautioned appropriately about drawing any inference about McIntosh’s guilt, and argued that his right to full answer and defence was not threatened by sitting in a plastic chair in the prisoner’s box. Any stigma associated with being there, the Crown argued, was not the result of its design or location, but of being the focus of a criminal trial.
Ultimately, each judge is in command of their own courtroom. Justice Brown reserved his decision so I probably won’t get to find out what happens, but it engaged some interesting themes about the presumption of innocence and the realities of jury trials. Here’s a helpful canvas of the case law on where an accused can sit in court, which depends on a number of factors.
BNL v Action Accounting
I tried to attend a pre-trial hearing in what appears to be a contract dispute between the Barenaked Ladies and an accounting firm. I wasn’t allowed in, naturally, but I actually saw Ed Robertson at court! Canadian rock royalty still show up for their own pre-trial court dates, I guess.
Christopher Garnier remanded to Burnside
The man alleged to have murdered Catherine Campbell is in custody after being arrested for breaching his bail conditions. What I find most interesting about Steve Bruce’s coverage is that Garnier’s father, Vince Garnier, spoke to Bruce to voice his frustration that police have got the whole thing wrong.
Police “compliance checks” are a common method of confirming that someone is abiding by their release conditions: if the police show up to an address where you are permitted by the court to be, you are required to come to the front door and present yourself. The father says his son was home, but that no one heard the police knocking at 1:20am, including a very skittish dog that barks at everything.
Garnier’s father says his son is willing to take a polygraph test to prove he’s telling the truth about being home. Unless the Crown prosecutor Glenn Hubbard believes Garnier, a polygraph wouldn’t help, as results are inadmissible in Canadian courts, something Vince Garnier acknowledged to Steve Bruce. Robichaud’s Criminal Defence Litigation has an accessible summary of the law on polygraph tests and how such tests are used in Canadian criminal investigations.
George Hubley guilty in Catie Miller case
On Friday, Justice Felix Cacchione found George Edward Hubley guilty of accessory to murder after the fact and interfering with human remains. Hubley assisted Kelly MacDonald and Jason Johnson who both pleaded guilty to first degree murder in the death of Catie Miller.
I had the opportunity to watch a few days of Hubley’s trial over the last few weeks. The Crown’s evidence was damning: hours and hours of recorded phone calls and stacks of text messages between Hubley and MacDonald in which they discussed daily life as well as got their stories straight amid police visits.
Crown prosecutor Rob Kennedy presented a compelling case that Hubley was more worried about being known in the community as someone who “ratted” to police than as someone who helped dismember and hide a body. Steve Bruce heard the decision and said Justice Cacchione was unconvinced by Hubley’s testimony that he was acting under duress.
I got the impression that Hubley must have wanted his “day in court,” as many people do — a chance to tell one’s story, and to challenge the Crown’s version of events, no matter how convincing their version might be. A plea is a highly personal decision, and Hubley’s choice not only to go to trial when the two other people involved had already pleaded guilty, but also to take the stand himself, stood out. It’s possible he did this on the recommendation of his lawyer Brian Church, and as an observer I can only speculate on how anyone decides on a plea.
Hubley remains on bail conditions until his sentencing in April.
St. John’s jury walks the route of sexual assault victim
A Newfoundland Supreme Court jury took a walkabout Tuesday to view the area where a sexual assault complainant says Carl Snelgrove, an officer of the Royal Newfoundland Constabulary, picked her up before bringing her to her home. The complainant says she passed out and woke up to Snelgrove having sex with her. The location must have some relevance to Snelgrove’s defence, but I can’t tell what, since Snelgrove admitted to picking up the woman and driving her home before thinking she invited him to have sex.
The RNC called in the Ontario Provincial Police to investigate the complaint after the woman told another RNC officer what happened, something that is depressingly refreshing to hear after the results of the Globe and Mail’s Unfounded investigation.
Small Claims decision a toothless victory for credit customer
In a January decision released Tuesday, Adjudicator Gus Richardson, agreed with Dimcho Dimov that Equifax Canada had not met their statutory duty to act with “skill and dilligence” when responding to his complaint that he was being penalized on his credit report for an unpaid account he had never opened.
Equifax, among other things, told Dimov to call a number for the Bank of Nova Scotia branch that supposedly held the account, but which turned out to be a fax number for a hair salon in Mississauga. Unfortunately, without being able to prove he had suffered a specific loss, Richardson could only award $100 to Dimov, the Small Claims Court limit on damages for “general damages” — things that can’t be easily quantified, like emotional distress.