In the News

Myths and stereotypes played a role in cab driver acquittal, says law prof

Dalhousie law professor Elaine Craig’s forthcoming Canadian Bar Review paper received national media attention this week, and rightly so. She calls out not just Judge Gregory Lenehan for making specific legal errors, but also the Crown and defence lawyers involved in the case for relying on dated, legally-rejected stereotypes about women and sex.

Craig is a leading scholar in this area. At the risk of oversimplifying the work of someone I admire, Craig argues that our laws aren’t the problem, but rather the lack of enforcement and improper application of those laws by some judges and lawyers is the problem. Her Wickwire Lecture at Dalhousie, “The Ethics of Sexual Assault Lawyering,” has come down from YouTube since I last shared it with readers, but she made a similar appearance in Ottawa in November which you can watch here if you’re interested.

Stay of proceedings granted in Antigonish sexual assault case

After taking three years to finally go to trial, Justice Patrick Murray granted a stay of proceedings on Thursday in the case of Behrang Foroughi-Mobarakeh, who was a St. Francis Xavier University professor when he was charged with sexually assaulting a woman in 2014. RCMP reportedly took two years to send forensic evidence to a lab for testing, with no explanation for the delay. The Supreme Court of Canada has ruled that superior court trials must not take longer than 30 months between the date of charges being laid and the conclusion of trial.

What determines which type of court hears a sexual assault trial?

Reader and engineer and cycling advocate Ben Wedge asked this week why some sexual assault trials happen at Provincial Court and others at Supreme Court. With a number of different sexual assault cases in the news, the procedures involved can sometimes be unclear. I wanted to share my answer to Ben with Examiner readers.

In Canada, criminal offences can be sorted into three classifications according to the process used to prosecute them. They can be classified as summary conviction offences, indictable offences, or hybrid offences. The category of an offence reflects its seriousness, and determines what sentencing options are available.

Summary conviction offences are less serious, and are tried in Provincial Court by a judge alone. They have a very short turnaround time: an accused must be charged within six months for a summary conviction offence.

Indictable offences are more serious and may go to Supreme Court, where (with a few exceptions) the accused can elect (choose) to be tried by a judge alone or by a judge and jury, with or without a preliminary inquiry. Someone accused of an indictable offence can also elect to be tried by judge alone in Provincial Court.

Hybrid offences can be prosecuted either by summary conviction or by indictment, according to the Crown’s choice. After the Crown makes this call, the offence is treated as either a summary conviction or indictable offence from that point on.

Sexual assault is a hybrid offence, which is why you could see cases happening in both levels of court. A sexual assault case could be tried in Provincial Court because the Crown proceeded by summary conviction, or because the accused elected to have trial there even if it’s by indictment. It could be tried in Supreme Court if the accused elected to be tried there by judge alone or by judge and jury. Or if you wander into Provincial Court and think you’re seeing a sexual assault trial, you might actually be seeing a preliminary inquiry, which is an optional process that happens at Provincial Court before a full trial in Supreme Court. It’s no wonder people might find this confusing.

Why would the Crown choose to proceed by summary conviction or by indictment in a sexual assault case? It all depends on the circumstances of the particular case and of the particular accused. If it’s an older case, and six months have long passed, summary conviction is off the table anyway. The Crown would consider if the alleged facts of the case are very serious, or if the accused has a long criminal record or a history of convictions for similar charges. Crown counsel may also consider the impact on witnesses: a trial for an indictable offence will take a long time and often involve a preliminary inquiry, which might be a challenge for witnesses having to appear twice.

Sentencing options differ dramatically, as indictable offences invite higher penalties. Someone convicted of sexual assault can be sentenced to a maximum of 18 months in jail if the Crown proceeded by summary conviction, compared to up to 10 years if the Crown chose to proceed by indictment.

Why would an accused person choose trial in one format or another, if they’re indicted? Defence lawyers have many insights into making this decision based on their professional experience. A jury trial is a complicated thing to set up; for example, the Sandeson trial had about 300 people summoned for jury duty, from which 14 people were selected over two days. And once the jury is selected, that’s it — you’d better be ready to adjust your life around the jury’s schedule, not yours. In contrast, with a trial before a judge alone, an adjournment can be requested much more easily. If an unforeseen issue arises, the judge may want to give counsel some time to work on it and return in a week or two when everyone is next available. Juries are also not ideal if your defence is going to focus on legal “technicalities,” or highly emotional material that might make it challenging for members of the jury to maintain impartiality.

All lawyers are bound by strong ethical principles when choosing or advising how to proceed, and Crown lawyers in particular are tasked with considering what would be in the public interest when deciding how to proceed.

In Court

Sandeson jury is selected; Crown opens case

Since William Sandeson is charged with murder in the death of Taylor Samson, he has no choice but to be tried by a judge and jury. Jury selection concluded last week.

The Crown opened its case Thursday, and lawyer Susan MacKay delivered the Crown’s opening submissions. This gave us our first indication what evidence the Crown would be relying on to prove that Sandeson murdered Taylor Samson without having recovered his body. The Crown expects to show the jury video surveillance of the two together going into Sandeson’s apartment, allegedly to sell Sandeson 20 pounds of marijuana. MacKay also told the jury that blood found in Sandeson’s apartment, including on a bullet and gun, and on items from his apartment later found on his family’s farm property near Truro, matched the DNA profile of Taylor Samson.

The first witness was Taylor Samson’s mother, who described searching all over south end Halifax with friends of Samson’s after he was reported missing. She admitted on cross-examination that Samson had a temper. She stated she was not a fan of Samson selling marijuana, and believed that it was the only drug he was selling, in small quantities to people he knew.

Other police witnesses appeared on Thursday to testify to the early steps in the original missing person investigation. On Monday, Sgt. Charla Keddy testified regarding Sandeson’s first police interview. You can watch it online here. You can also see a screenshot of text messages between Sandeson and Samson here. The trial continues on Thursday.

Digression no. 231: Courtroom etiquette

Courtrooms are open to any member of the public. As Chief Justice MacDonald reminded Victoria Henneberry a couple of weeks ago when she asked to have the courtroom cleared during her appeal, the open court principle is a pillar of our justice system.

I know it’s not always easy to stay awake in court; Blair Rhodes tweeted that someone was snoring behind him. It happens. But if you’re going to be sitting behind me in court, maybe don’t scoff, yawn loudly and mutter under your breath the way a group of college-age students did during the Sandeson trial last week. I hit the limit of my patience when one of them uttered a gendered insult about a lawyer, in response to an argument he didn’t like (and didn’t understand). The most he got from me was a half-turn and a furious glare — pretty much the limit of my bravery — and they snickered at me like little boys being scolded in church. I’ll be tattling to the teacher, don’t worry. If you won’t act like an adult in Supreme Court, where exactly will you act like an adult?

On a calmer note, some judges consider it scandalous to leave or enter the courtroom while a witness is testifying. So far in the Sandeson trial, Justice Arnold has not made note of anyone getting up during testimony, even when Taylor Samson’s mother testified. Nevertheless, if you can possibly wait to go pee or answer the phone, try to wait until there’s a break in testimony. Witnesses are there to perform an important duty, and the jury needs to focus on them. Those microphones don’t amplify anyone’s voice, they only record, and some witnesses speak very quietly.

And for god’s sake, please keep any chest-heaving sighs of boredom and gendered insults to yourself. I will tattle on you, and I will do the movie theatre half-turn.

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