On the Docket
Jimmy Melvin Jr. trial begins Thursday
The week began with pretrial motions in Jimmy Melvin, Jr.’s murder trial. Melvin is charged with first-degree murder arising from the death of Terry Marriott, Jr. in 2009. On Thursday, jury selection is scheduled to begin. The trial is scheduled for 24 days.
Hubley sentenced to four years in Catie Miller murder case
Justice Felix Cacchione handed a four-year custodial sentence to George Edward Hubley in the Nova Scotia Supreme Court on Thursday, while everyone but Steve Bruce was sitting in the Sandeson trial next door.
George Edward Hubley was found guilty of interfering with human remains and accessory to murder after the fact in February. Hubley admitted at trial that he helped Jason Johnson and Kelly MacDonald dispose of evidence and the body of Catie Miller, after Johnson murdered her in MacDonald’s car in 2014. He prepared tarps and tools, allowed Johnson to dismember Miller’s body on his property, and helped the two principal offenders clean up by burning and disposing of evidence.
Both Johnson and MacDonald pleaded guilty to second-degree murder in 2016. Hubley, however, chose to go to trial, insisting he was operating under duress. Steve Bruce writes:
“I truly hope the Miller family understand I was in shock after the gruesome and devastating acts that Jason committed. These images have haunted me since that night. I keep seeing them over and over and over again in my head.
“There’s not a day goes by that I don’t remember what happened that night.”
Hubley said his actions were not meant to help the killers get away with their crime but to ensure his family “did not meet the same fate” as Miller.
“I saw the devil that night in Jason’s eyes,” he said.
Duress is an excuse defence — unlike self-defence, which is a justification defence. Our legal system (in theory) only wants to punish people who voluntarily commit criminal acts. Like necessity, the defence of duress says the accused shouldn’t be punished for the criminal act because they had no moral voluntariness at the time they committed it. “The act remains wrong, but the author of the offence will not be punished because it was committed in circumstances in which there was realistically no choice” (R v Ryan at para 23).
Justice Felix Cacchione wasn’t convinced. From Steve Bruce:
Cacchione rejected the duress defence in February, finding there was “no air of reality” to Hubley’s claims that he acted out of fear for his and his family’s safety.
“Any fears he may have had were the product of his imagination and not caused by anything the principals may have said or done to him,” the judge said Thursday.
To raise any defence, like duress, it must have an air of reality. There question is “whether there is evidence (some evidence, any evidence) on the basis of which a properly instructed jury acting reasonably could base an acquittal if it believed the evidence to be true” (R v Cinous at para 83).
If the judge finds the defence has an air of reality, then the Crown has to disprove that defence beyond a reasonable doubt. If the judge doesn’t find an air of reality, the Crown just has the usual job of proving each element of the offence beyond a reasonable doubt.
I wrote a bit about this at the time, but when I watched the trial, Crown lawyer Rob Kennedy carefully cross-examined Hubley on important points designed to weaken his claim of duress. He asked Hubley about the various routes off the property, the vehicles with gas in them, the weapons available to him, the three hours he had in between getting a call from MacDonald and their arrival with a dead body … on and on. Surely, the thinking goes, Hubley had several realistic choices other than helping the killers cover their tracks.
Focusing on escape routes and the ability to call for help is not always my favourite approach. We are moving past the point where calling for help or running away are the presumed behaviours of a rape victim who’s telling the truth, for example. But in this case, it was clearly compelling evidence in favour of the Crown’s argument that Hubley was not under duress. Hubley agreed to help out a friend, and didn’t try to get out of it, even when the help his friend needed was gruesome.
Kobylanski sentenced to time served for lesser charge
One of the ickiest human beings Haligonians learned about this year, Michael Raymond Kobylanski, was sentenced to 20 months in jail for the charge of common assault of which a jury convicted him in March. The jury could not reach a verdict on the remaining charges of sexual assault, sexual assault with a weapon, forcible confinement and uttering threats. A new trial is scheduled for November.
Kobylanski allegedly paid a teenage girl for sex and part-time work in his business before becoming increasingly violent with her. Blair Rhodes reported on his violent criminal record, a record which Crown lawyer Susan MacKay referenced in sentencing this week. From Steve Bruce:
In 1997, Kobylanski was sentenced to 12 years in prison after he pleaded guilty to an aggravated sexual assault against a teenage girl in Ontario the year before. He served 11 years behind bars before he was paroled to a halfway house.
“It was a brutal attack where he basically left his 14-year-old victim for dead,” MacKay said of the 1996 incident.
“The Crown’s view is that Mr. Kobylanski is extremely dangerous.”
The Court deemed him to have served this sentence with his time on remand, but he’s still in custody pending trial.
Sandeson trial: Week 3 aka The Bloodening aka I Should Just Read the Tweets
This week I attended ~60 per cent less Sandeson trial than the last two weeks. That’s a big deal for me. I only stayed for a couple of hours, during which Sgt. Sandra Johnston testified about the investigation of William Sandeson’s apartment on August 19, 2015. Johnston told the Court she began working at 5:26am, attended the scene three times, and finally concluded her day at 9:30 pm. There were several wide-eyed reactions in the gallery. Hopefully that’s an unusual day. (I mean, hopefully alleged murder scenes are unusual for lots of reasons.)
The Crown entered nearly 200 photographs of the apartment into evidence through Sgt. Johnston, as well as several physical exhibits including a gun and ammunition, parts of the floor and part of the window frame, all of which are alleged to have been stained with blood. DNA evidence has not yet been entered, but the Crown’s opening submission told us they expect to connect those items to Taylor Samson’s DNA profile.
As always, excellent coverage is provided by Natasha Pace, Kayla Hounsell, Blair Rhodes, Steve Bruce, Zane Woodford, Aly Thompson and likely even more. A lot of people have been showing up to watch, and everyone’s welcome, but if you’re inclined to snore or kick my bench again, not to worry! Stay at home and follow the excellent live-tweeters.
On Tuesday, Taylor Samson’s girlfriend, Mackenzie Ruthven, told the Court about the last time she saw Samson. According to the Crown’s theory of the case, she is one of the last people to see him alive. She told the jury he left without his medication, car keys and wallet, carrying a large black duffel bag.
Det, Cst. Roger Sayer testified about Sandeson’s second police interview, when he was first facing criminal charges in Samson’s missing person case. The jury watched the video, which is emotional. In this interview, Sandeson goes a long time without talking, as he had received legal advice not to say anything. Sayer continues talking. Eventually Sandeson begins to cry and says he was the victim of a home invasion by men who robbed them and purportedly took Samson with them. Sayer pushes him on this point, suggesting Sandeson cleaned up after a home invasion and sent texts to Samson’s number to make it look like he’d never shown up rather than call the police about the robbery. The video wasn’t over as court ended Tuesday.
We all have a constitutional right to remain silent, and a right to retain and instruct counsel without delay if arrested or detained. It’s a common misconception from TV shows, however, that you have a right to have a lawyer present during a police interview or when making a statement. In Canada, our right to consult counsel is satisfied when the police let you speak to a lawyer before the interview begins, usually by phone. Unless police consent to your lawyer being present in an interview, you’re on your own.
A lawyer will often advise that you should say nothing, but that’s hard to do in practice. Even if you’ve called a lawyer and have told police you don’t wish to make a statement or say anything, police can continue to speak at you. They have no obligation to give up and leave you alone, no matter how many times you say you don’t want to make a statement. You can end up with interviews like Sandeson’s, with long police soliloquies and silence on the other end … at least until something the officer says gets under his skin, and he starts talking. It’s physically and psychologically uncomfortable being detained by police, and that can get under your skin, too. The police in this interview were careful to note that Sandeson was allowed to sleep between two separate interviews so that the defence couldn’t claim he was being deprived of sleep.
There’s a lot more to come about police interviews in this trial, and dozens of witnesses left. Five weeks to go — anything can happen.