Court Watch: sexual assault and the law

In Court

Hubley trial continues

This week saw the Crown close its case in the trial of George Edward Hubley for accessory to murder after the fact and interfering with human remains, following the 2014 murder of Catherine “Catie” Miller.

Defence lawyer Brian Church chose to call his client as a witness on Monday. I watched Hubley’s cross examination in the afternoon, where Crown lawyer Rob Kennedy elicited evidence about Hubley’s relationship with Kelly MacDonald. MacDonald and Jason Johnson have already pleaded guilty to second degree murder in the killing.

Journalism students Christy Somos and Katlyn Pettipas of The Signal attended trial on Thursday. They watched Hubley’s police interview from November 24, 2014, in which he said he didn’t call the police on Johnson and MacDonald because he was scared of them.

On Monday, the Crown asked about Hubley’s personality, his relationship with MacDonald, and the various escape routes out of Hubley’s home and property. Hubley insisted he feared for his safety by ratting the killers out.

Asked, “Weren’t you and Kelly MacDonald a lot closer than you’re letting on?” Hubley replied, “No, just business associates.” Cross-examination continued into Tuesday, with the Crown reportedly asking Hubley about the trunk capacity of a Hyundai Accent hatchback.

The trial is scheduled to continue until February 17.

Department of Community Services v Very Sick Lady

In the appeal by the Department of Community Services of the decision of the Assistance Appeal Board about a woman we’ve called Ellen, I’ve been told that her Dalhousie Legal Aid Service lawyer was able to secure a confidentiality order in that matter. So I won’t be able to write much more about it, but I fully support the protection of her privacy.

In the decision under appeal, the Appeal Board required the Department to pay the full $850/month it costs Ellen to rent in an apartment that she can actually live in with Multiple Chemical Sensitivities (MCS). The judge has reserved judgment in the matter. I hope to get a comment on the story when the decision comes down.

Courtroom Realities: sexual assault

The Canadian Bar Association’s Midwinter Conference took place February 2-3. A full day of conference sessions was free for students, so naturally I didn’t miss it.

The plenary Thursday morning featured a panel of criminal lawyers specializing in sexual assault cases: David Butt, a trial and appellate lawyer well-known for columns in the Globe and Mail on criminal law; Denise Smith, Deputy Director of Public Prosecutions with the Nova Scotia Public Prosecution Service; and moderator Stan MacDonald, a leading criminal defence lawyer in Halifax.

The panel discussed ways that the justice system could attempt to deal with sexual assault cases more effectively. How, MacDonald asked, can a defence lawyer today ask a better question than the traditional angle,”Why didn’t you call for help?”

“I would expect that question would be asked,” Smith admitted.

The question should be more nuanced than that, knowing what we know about the unique neuropsychology of trauma, noted Butt.

If the ultimate function of a trial is to get at the truth, Butt questioned whether the default adversarial system was the best way of doing that. Instead of the traditional criminal court, he suggested a civil court, or a dedicated court like Nova Scotia’s own special courts for domestic violence, mental health, and drug treatment. Police in the UK are having success with a “peace method” of interviewing, he said, which is designed to elicit relevant information from reluctant witnesses. This might be one of several ways that our system could approach these cases differently without sacrificing the truth-seeking function of the court.

Asked what outcomes complainants can hope for, Butt was frank. “If you’re looking for a conviction, then odds are low,” he said. “But if you’re looking at the quality of the process — how the user feels they’ve been treated, regardless of outcome — those odds are much better. Simply feeling like you’ve been heard can mean a lot.”

“The system we have is worth saving, and we should not want to erode the presumption of innocence or the high standard of proof in criminal cases,” said Smith.

Blatchford blasts victims’ narratives

I don’t want to spend a lot of time discussing Christie Blatchford’s lunchtime address to the Canadian Bar Association conference, but it was too much of a contrast to the morning plenary not to mention.

Punctuated with moments of dark humour, it can’t be denied that Blatchford is a powerful voice in Canadian journalism. But her talk law-splained criminal procedure to its own practitioners, and stood in direct opposition to the justice reforms floated by experts in sexual assault law that morning.

According to Blatchford, police are too gentle to complainants, and judges are overly entitled. Her 2016 book, Life Sentence, features a gavel on the cover, which is the least of several issues I have with it (as that Canadian courts don’t use them).

Ethics of Sexual Assault Lawyering

This lecture is less recent but highly relevant to litigating sexual assault cases. In December, Elaine Craig presented the 26th Annual F.B. Wickwire Lecture in Professional Responsibility and Legal Ethics.

Craig’s thesis was that some defence lawyers are engaging in conduct that abuses, humiliates, and discriminates against sexual assault complainants. Such conduct, Craig argues, is inconsistent with the criminal defence bar’s self-understanding of its role. Defence lawyers have an ethical duty not to engage in such strategies. You can watch the full lecture here: 

Decisions

Appeal dismissed in domestic sexual assault

A husband’s appeal of his sexual assault conviction was dismissed last week. There’s no publication ban in place, but I’ll leave the couple’s names out of it. The husband argued the trial judge had misapprehended his evidence as to his belief in his wife’s consent, and that the trial judge failed to consider a defence of honest but mistaken belief in consent. Justice Cindy A. Bourgeous disagreed and dismissed his appeal.