2016-12-27 Christie Blatchford: The year's best and worst moments in Canadian criminal justice | National Post


Christie Blatchford: The year’s best and worst moments in Canadian criminal justice

Jian Ghomeshi outside a Toronto court with his lawyer Marie Henein.
THE CANADIAN PRESS/Chris Young/FileJian Ghomeshi outside a Toronto court with his lawyer Marie Henein..

It’s not every year that the criminal courts dominate the headlines as they did in 2016. More’s the pity too, because at least in the courts — unlike in other spheres, such as politics, security/terrorism, modern war — there is usually some certainty, if not definitive answers.

Without further ado, what follows are the year’s Best and Worst Moments of Canadian Criminal Justice:

WACKY VERDICT NO. 1:

The second-degree murder trial of Toronto Police Constable James Forcillo began in the fall of 2015, but dribbled into the new year when the jurors retired — as is often the case, without all the information that lawyers on one side wanted them to have.

This time, it was defence lawyer Peter Brauti who’d been prevented, by a ruling from Ontario Superior Court Judge Ed Then, from calling an expert on "suicide by cop," who would have testified that Sammy Yatim, the 18-year-old Forcillo killed on a Toronto streetcar in 2013, may have been bent on deliberately engaging with police, "the only agent in society that has access to lethal force," as the expert put it.

Brauti unsuccessfully asked for a mistrial in December, convinced that the trial had been "completely unbalanced."

In any case, when the jurors returned with their verdict on Jan. 25, it was a stunner that at least on the surface made no sense at all: Forcillo, they said, was not guilty of second-degree murder, but guilty of attempted murder.

In other words, the officer was acquitted of actually killing the teen, but convicted of trying to kill him.

The verdict was anchored in the fact that belatedly, prosecutors had charged Forcillo with attempted murder in relation to a second volley of six shots he fired at the fallen Yatim.





Blatchford: Bizarre attempted murder conviction... 3:51

The murder charge related to the first volley of three, which were the lethal shots.

But it was still an odd one, and by no means the end of the case.

Only six months later was Forcillo finally sentenced — to six years in prison — and after spending one night in jail, he was released on bail pending appeal.

It’s unlikely to proceed before the spring.

WAS THAT AN ACTUAL JUDICIAL DECISION, OR A MISOGYNY 101 LECTURE?

The sexual assault trial of York University graduate student Mustafa Ururyar — his alleged victim was another York U grad student, Mandi Gray — before Ontario Court Judge Marvin Zuker lasted six days.

By the account of none other than the judge himself, the trial was uneventful and even typical: The two had been sleeping together occasionally for about two weeks, and on the night in question, Ururyar said, the sex was consensual, and, Gray said, was not.

The judge delivered his verdict July 21.

First, he reviewed the testimony he’d heard and then the lawyers’ submissions.

It was on Page 153 that Zuker appeared to lose his cool.

Gray had sent Ururyar a text inviting him to join her at a bar that night. "Come drink and then we can have hot sex," she wrote.

Kevin Van Paassen for NP
Kevin Van Paassen for NPMustafa Ururyar leaves court after receiving bail on Aug. 3..

But, the judge found, "the ‘hot sex’ text falls short of making anything apparent. The ‘hot sex’ text can be read in many ways," he said.

Really?

Then he proceeded to cite and smash every so-called rape myth and set things right. He quoted not just the usual law cases, but also the late American poet Maya Angelou, Virginia Woolf, a training manual for male "batterers" and a half-dozen academic papers about victim trauma and male violence. He also repeatedly referred to Ururyar as the "rapist" and treated him with dripping contempt.

In September, Zuker sentenced the 29-year-old to 18 months in jail.

A day later, Ururyar was granted bail pending appeal, just as he had been when Zuker yanked his bail after conviction, the bail judge saying, of Zuker’s myriad academic references, "That was a jaw-dropper."

No date for the appeal has been set.

WACKY VERDICT NO. 2:

It was a long and rocky road, just getting Travis Vader to trial in the 2010 disappearance and deaths of Alberta’s Lyle and Marie McCann — a difficult investigation (the McCanns’ bodies have never been found) and prosecution that at one point even saw the proceedings stayed.

But to trial Vader finally went, and in September, he was convicted of two counts of second-degree murder by Court of Queen’s Bench Judge Denny Thomas.

Unusually, Thomas had allowed the verdict to be televised and delivered online, in real time — proof, it turns out, that no good deed goes unpunished.

Alas, the judge had made a mistake and convicted Vader under Section 230 of the Criminal Code.

And that section no longer exists, having been struck down in 1990.





Travis Vader conviction reduced to manslaughter... 2:06

It’s what University of Alberta law professor Peter Sankoff calls a "zombie" section, one of almost two dozen such laws that have no legal force anymore but are still on the books and faithfully reproduced in new online and print versions.

About eight weeks later, Thomas substituted verdicts of manslaughter.

The 44-year-old Vader, who didn’t testify at trial, revealed his ghastly self-absorbed nature when he testified this month at his sentencing hearing that he was humiliated by a police strip-search, taunted by prison guards and sometimes crammed into a crowded holding tank while in custody.

His sentencing resumes Jan. 3.

BAD ATTITUDE, BAD LUCK:

In the year of #IBelieveWomen and assorted other hashtags, when women roared their victimhood, Alberta Judge Robin Camp was dropped right in it when his mishandling of a 2014 sexual assault trial became public.

By then, Camp had been elevated to the rather more august Federal Court of Canada, where it’s unlikely he’d ever see another such case again, but the damage to his reputation and to justice itself was done — and perhaps, to the former, irreparably.

Camp’s questioning of the teenage complainant — he asked why she couldn’t just keep her knees together or "skew" her pelvis to foil her alleged attacker — made him notorious across the country, saw his conduct probed by an inquiry committee of the Canadian Judicial Council and resulted in a unanimous recommendation that he be removed from the bench.

The full CJC body, composed of senior judges, is expected to consider the recommendation early in the new year.

HAVING BREASTS ISN’T INCOMPATIBLE WITH LYING, OR, RATHER, "A WILFUL CARELESSNESS WITH THE TRUTH":

The latter are the words of Ontario Court Judge Bill Horkins last March as, under enormous public pressure in a hugely publicized case, he acquitted former CBC Radio superstar Jian Ghomeshi of a sheaf of historic sexual assault charges.

The prosecution foundered on two things. The first was a startling lack of candour from the three complainants, who maintained that after Ghomeshi attacked them, they had either never wanted to see him again or feared for their safety and avoided him except in public places.

As it turned out, No. 1 sent him flirty emails and a bikini picture, No. 2 sent him flowers and a love letter and avidly pursued him for months after, and, No. 3 was so frightened she took him home with her one night and gave him a hand job.

None of these things were disclosed to the authorities until cross-examination by Ghomeshi’s lawyer, the formidable Marie Henein.

And that brings us to the second problem: the lack of vigour by the detectives of the Toronto Police sex assault squad, whose interviews of the three women were so deferential of their victim status it’s amazing the officers even got their names down.

As Horkins said, while acknowledging courts must guard against false stereotypes in such cases, there is also "the need to be vigilant in avoiding the equally dangerous false assumption that sexual assault complainants are always truthful."

• Email: cblatchford@postmedia.com | Twitter:





Blatchford: Ghomeshi not-guilty verdict \'a good... 2:53

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