Legal challenges as the Pickton trial begins

By Daniel W. Burnett © 2007
January 22, 2007

Robert “Willie” Pickton is goes on trial on Monday, January 22, 2007 on six counts of first degree murder. Everything from the jury selection, which took place in December 2006, to the security arrangements, to media access issues have been out of the ordinary, reflecting the extraordinary challenges of the case.

The commencement of the trial will be both a relief and a new challenge. A relief because the past four years of pre trial proceedings and the publication bans that apply to them will give way to a trial, heard by a jury and reportable to the public. There will be an opening statement that for the vast majority of citizens will at long last outline what Crown alleges took place. There will be a Defence opening that will provide some idea of how the charges are being answered. The evidence will be presented in a truly public way.

It is worth taking a moment to appreciate that, over the past four years, almost all the key evidence has been presented in an open-door courtroom. This means the publication bans on the preliminary inquiry and voir dire worked, despite all the fears that led to failed requests for closed-door hearings and super-bans. Canadian and foreign media alike obeyed the bans. It is a chapter that should be recalled next time there is a mega-trial and concerns about foreign ban-breaching are raised.

Those bans, on previously exposed information, remain in place until the trial ends, but for most practical purposes, the reporting of what the jury hears will fill the void and the public will learn the story as the jury does.

But challenges remain both for media and for those involved in the trial. For media, there is much discussion of journalistic issues. The judge during jury selection told the prospective jurors that the case would be like a horror movie they cannot turn off. Media viewers, unlike jurors, can turn it off if what they see is too upsetting. This leaves media outlets with a dilemma. Do they reporting everything the jury learns and risk losing their audience?

There are also ongoing legal challenges during the trial, such as remembering to observe the identity bans on jurors and a few others, and considering carefully any commentary on the evidence. Since we watch a good deal of American television, we have become used to hearing commentators and witnesses saying that a certain witness did well or badly, or that it was a good or bad day for the prosecutors. That kind of commentary in Canada risks running afoul of contempt laws which are designed to avoid influencing the jury. Unlike U.S. trials where jurors are often sequestered during the trial, the jurors in Canada go home to their families each day, and they are potentially exposed to such commentary.

Those involved in the trial are undoubtedly concerned about the toll a trial of this magnitude and type can have on the jurors. Under Canadian law, if more than two of the twelve starting jurors are lost through health or other reasons, the trial cannot continue. If that happens, justice will be delayed and millions of dollars would be wasted.

Ultimately, everyone wants the same thing: justice to be done and be seen to be done. Every player in this historic drama bears a heavy responsibility to make sure that happens.