By Daniel W. Burnett, January 29, 2006

Robert “Willie” Pickton is accused of being Canada’s worst serial killer. If found guilty on all 26 murder charges, that will put him in a morbid lead over the infamous Ted Bundy. The trial, which began January 30, will be one of the most prominent news stories of the year, and has significant international attention. It will test the laws that protect fair trials in Canada like they have never been tested before.

Technically the trial began last year, when Justice Williams presided over a few weeks of preliminary disclosure issues. He declared that the preliminary matters brought before him were part of the voir dire stage of the trial. This term refers to the portions of the trial when the jury is absent, and it triggers an automatic publication ban under section 648 of the Criminal Code over all “information” which the court hears in the absence of the jury. When continuous proceedings start on January 30, the first several weeks will be without a jury, and they too will be covered by the voir dire ban. So will the many instances during the months of trial to follow when the jury is asked to leave the room for counsel to argue about issues such as the admissibility of evidence.

Challenges for the Media

The ban on voir dire information is just one of the many legal challenges for media covering the trial. By the time the trial is in its fifth or sixth month, there will have been
countless voir dires, some lengthy, some for just a few minutes, at various times through the trial. Reporters’ notes will be littered with references to testimony, exhibits, and arguments. Few will be able to attend every day. Somehow they will need to keep track of what information came out during voir dire and remember to obey the ban.

The temptation to simply “put down the pencils” when the jury is absent would be a mistake, because the ban is only temporary until the jury retires to consider its verdict (or until verdict if the judge exercises his discretion to make such an order). Therefore, if the case comes to an abrupt end due to a plea or other development, the information from voir dire will become the sole record of much of the evidence. Also, when the trial is over, the information from voir dire that the jury did not hear can be a fascinating series of news stories.

The voir dire ban is just one of the legal landmines for reporters. There is also a ban on Pickton’s preliminary hearing, which took place over many months in 2002 and 2003. At that hearing, the Crown laid out its main evidence against Pickton and those who were present already know very well what evidence to expect, what exhibits are going to be presented, and what witnesses will say. However, those reporters are bound by a ban on publishing any evidence from a preliminary hearing, which is contained in section 539 of the Criminal Code. Again, should the trial come to an end either by way of a verdict or a plea bargain, that information becomes publishable and can provide some fascinating material. If there is a plea or the trial ends suddenly for any other reason, the preliminary hearing would provide much of the only the only public record of what is alleged to be the worst murderous spree by any Canadian in history.

The legal complications for reporters do not end there. In addition to the publication bans there may well be other discretionary bans imposed by the trial judge as the case evolves. The B.C. Courts website has a special section devoted to the bans which apply to the Pickton trial. Journalists can keep up to date by going to http://www.ag.gov.bc.ca/courts/pickton/index.htm

There is still more. Canada has a crime known as “media contempt,” which is committed whenever media publish information which “they knew or ought to have known would create a real risk of prejudice to a fair trial.” This means that if reporters find out information, even information which is not covered by one of the bans on publication, which is likely to bias a juror against Pickton, it would be a crime to publish it. Contempt is the oldest common law crime in Canada, and the boundaries in law are fuzzy. In a highly competitive news market, those boundaries get pushed, and the risk of contempt is constant.

To use a hypothetical, fictional example, if an enterprising reporter were to find out that Pickton was a friend and confidante of Gary Ridgway, the “Green River Killer” from the U.S., that would be explosive information which could give some jurors the impression that the two were somehow connected, and it would be contemptuous. This is not only a question of a reporter or media outlet needing to avoid its own potential prosecution, but the daunting prospect of being the person who caused a mistrial should one occur due to media publication. Not only do contempt fines often include an estimate of the trial costs which have been thrown away due to a mistrial, which would be millions in this case, but to be known as the reporter or television station who caused a mistrial in Canada’s biggest murder case would be the journalistic equivalent of having “loser” tattooed on your forehead.

And imagine this scenario. Six months into the trial, a reporter comes into some explosive information that was told to a friend of one of the alleged victims. After addressing the daunting question of whether the information is reliable, the reporter must then consider whether or not that information is covered by one of the bans. It is highly unlikely that the reporter has attended every day of the preliminary hearing (covered by the section 539 ban) or every voir dire hearing over the many months of trial (covered by the section 648 ban). Even if the reporter had attended them all, it would be difficult to recall or determine whether the information came out while the jury was present or not. Assuming the reporter can be satisfied the information did not come out in a “banned” portion of the proceedings, the question is then whether it is contemptuous, and the fuzzy border problem arises. This is the difficult process which many reporters will go through with respect to many bits of information that emerge from the myriad sources as the proceedings go along.

Challenges for the Justice System

It is not just reporters who face significant challenges in the Pickton trial, but the justice system itself. This is a case attracting international attention, and all the legal restrictions aimed at protecting the fair trial of the accused will be rendered meaningless if all of the banned information were published nightly on the American CNN newscast. Not only are the laws different in the USA, where bans on open court hearings are virtually unheard of, but so is the mind set. American media often criticize the maze of publication bans which choke the flow of information about what ought to be an open justice system. Many Canadian commentators, including this author, view the Canadian system as far too restrictive and believe that our justice system is not so fragile that it needs secrecy to hold together. But media operating in Canada are bound by the rules whether they like them or not. Add together the profile of the trial, the philosophical view of American media that court proceedings should be published, and the practical difficulties in enforcing a Canadian legal rule outside the territorial boundaries of Canada, and you have the recipe for a most challenging trial.

Certainly the courts can try. At the preliminary hearing, the presiding judge, upon hearing of a possible breach of the ban by a Seattle television station, determined what reporter was responsible and made it clear to him and all of the other reporters in no uncertain terms that anyone involved in a breach, even one which originates outside Canada, could expect to be shown the door. That threat will serve as a powerful deterrent to anyone considering an attempt to evade the publication ban by publishing in another jurisdiction. However, the threat is hardly perfect. If all the foreign media outlet wishes to do is publish one explosive “ban breaking” story and intends to follow the rest of the trial using the wire services, it is difficult to imagine what the courts or the police in Canada could effectively do to stop it. Even if they could prosecute after the facts, the damage would be done.

The Trial Judge declined a request arising from these concerns to make special orders imposing secrecy on those in the public gallery, but the fear over U.S. internet publications, be they by major media or individual bloggers, did convince him to issue a ban on publishing information about the internet location of any web sites which breach the bans.

This is the point where journalistic peers from different countries begin to squabble. Nothing drives a media outlet more crazy than the knowledge that another media outlet can publish more. For Canadian journalists, the prospect that their American competitors can “get away with” more in an international story of this sort is of serious concern.

The most telling example of international media problems that can arise was the publication ban at the Karla Homolka plea hearing about twelve years ago. The case attracted international attention, with American newspapers being seized at the border, Canadian cable companies being required to black out certain American news programs, and prosecutions against those who defied what they saw as an outrageous restriction on information. There was genuine concern about whether the subsequent trial of Paul Bernardo, which the ban was meant to protect, could proceed fairly. The kicker is that the Homolka case occurred when the internet was still in its infancy. Imagine those problems multiplied through the reality of the internet age today. There has already been a horror movie made in the U.S., oddly titled “Killer Pickton,” considering that there has been no conviction.

There will undoubtedly be multiple motions by the defence for mistrials and requests for further publication bans and prosecutions. They have already unsuccessfully sought to have the preliminary hearing in secret and the voir dire conducted under a “code of silence” order upon those in the public gallery. The Judge has made it clear he will consider the necessity of these and other protections as the case and its publicity evolves.

This story may be too big to contain, yet reporters in Canada and elsewhere are being asked, with criminal sanctions hanging over their heads, to rein themselves in. The legal system is attempting to control the flow of information in an age when the ability to do so is severely limited. The myriad challenges of this trial have many thinking about whether our current means of protecting trials is appropriate or even worth the trouble. By the time this historic trial is over, Courts, legislators, and the media will be asking themselves those same hard questions.