The Docket

So episode 81 - a new record.  But you know that right? Because you subscribe to the show on iTunes and have already rated and reviewed the podcast - right? You should.

And now you can join The Docket’s Discord chatroom. What I hope will be a community of legal/political nerds and Docket fans. Ask us questions, listen to live recordings, and join the conversation. Join the Discord channel with this link: https://discord.gg/2TzUamZ

After a weekend at the Criminal Lawyer’s conference we sat down for a bit of an update.

Emilie settled her twitter lawsuit with Ottawa’s mayor Jim Watson. Watson reversed his position, admitted he was wrong, and unblocked all of Ottawa.

Then we move onto Andrew Scheer’s justice announcement. He wants to crack down on guns and gangs and is not afraid to mislead the public and violate the Charter. So we decided to deconstruct his dishonest six-point plan.

And then Michael pisses off the whole civil bar. Pro Bono Ontario is a necessary and valuable service. But funding to the tune of $500,000 has fallen through and the Ottawa and Toronto office will be forced to shut down next month. The civil bar is rightly up in arms. But if the issue is access to justice maybe civil lawyers could take a closer look at the role their high fees play in the problem.

Emilie Taman on Twitter: @EmilieTaman

Michael Spratt on Twitter: @mspratt

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Enjoy

Finally a new episode! Sorry Sorry Sorry. We have been slammed at home and at work.

Almost three weeks ago we sat down with Peter Sankoff and Dino Bottos the night before they headed to the Supreme Court to argue the appeal of Barton v. The Queen. The case is complicated with important legal issues and the facts are tragic. Barton was charged with the death of Cindy Gladue. Gladue died of injuries sustained during sex - the question is whether the sex was consensual or not.

Barton was acquitted by a jury but the Alberta Court of Appeal found that errors had been made and sent the case back for a new trial. Now its the Supreme Cours turn to weight in.

There have been strong feelings about the case - it involves allegations of sexual violence that can be very disturbing.

For more information check out the Supreme Court of Canada website for the legal factums and a webcast of the arguments made by all parties and interveners.

After Barton we talked about Brett Kavanaugh - which I swear was topical at the time.

And we promise to get a new episode out soon!

In Chapter 8: The Verdict we get our hearts broken.

But before that we talk about closing arguments and the tips and tricks of the trade. Side note: what does the T in Pure-T-Filth stand for anyway.

And then the verdict. Waiting for the verdict is the most intense thing ever and then hearing a verdict is that x100. We try to break down what David Rudolph is feeling and then talk about how to pick up the pieces.

In late July, after not campaigning on the issue and in the middle of Toronto’s municipal election, Doug Ford and his Conservative government introduced Bill 5, also known as the Better Local Government Act, 2018.

Bill 5 radically altered Toronto’s electoral districts by cutting the wards from 47 to 25 and in most cases doubling both their physical size and the number of potential voters. The immediate impact of Bill 5 was wide-spread confusion and uncertainty.

So dramatic was this mid-election change that the new law was before the Ontario Superior Court in a matter of weeks. And this week the court released its decision finding Ford’s legislation unconstitutional because it violated both the candidates and the voters freedom of expression under section 2(b) of the Charter.

Ford’s reaction was swift and unprecedented - he said that the Ontario would invoke the notwithstanding clause of the Charter to push through the unconstitutional bill - despite the court decision.

Invoking the rarely-used notwithstanding clause is a nuclear option to deal with a non-urgent matter. But it seems that Ford is perfectly content to prioritize political expediency over Charter rights. It also seems that Ford either does not understand the relationship between the courts and the legislature - he says he was elected by the people so he should be able to do as he pleases - constitutional rights be damned.

And Ford says he will do it again if the courts try to hold him back.

This week we break down the legislation, the court decision, the notwithstanding clause and why this all matters.

It’s going to be a long four years.

Is the defence of extreme intoxication in sexual-assault cases back? 

The headlines were attention grabbing after a Toronto Judge ruled that section 33.1 of the Criminal Code, which limited the defence of extreme intoxication in all assault cases, was unconstitutional.

As the Globe and Mail put it: The defence of extreme intoxication in sexual-assault cases is back in Ontario, after a judge ruled that a federal law removing it violates the constitutional rights of the accused.

The twitter storm that followed was predictably biting.

But in the legal world the decision came as no big surprise. After all, that section of the Criminal Code had been found unconstitutional 9 times over the last 25 years. 

And a successful defence of extreme intoxication in sexual assault cases is as rare as a unicorn - you can count the times it has been successful on one hand that is missing a bunch of fingers.

So while it is completely justified to be concerned after the media reports, a deeper look at the case and the constitution may help reduce some of the shock and disgust that some people felt following the decision.

This episode we take a look at the recent court decision and the history of extreme intoxication as a defence to general intent offences like sexual assault. And at the end of the day it is not as bad or offensive as it may appear at first blush.

In Chapter 7: The Blow Poke Returns the defence makes its toughest call - will Michael Peterson testify. Calling the accused to the stand is one of the biggest decision in any trial. This week we break down the tactical considerations when calling defence evidence.

Oh and the Petersons also found the blow poke. What! What!?! The Staircase is full of surprises  and we look at the complex and sometimes murky ethical obligations that can arise when new evidence is discovered.

In Chapter 6: The Prosecution's Revenge the prosecution puts its case to the jury - complete with prejudicial "gay sex" and a speculative similar fact application implicating Peterson in the 1980s death of his friend Elizabeth Ratliff. 

Peterson's defence team of David Rudolf and Tom Maher take apart the Crown's case with some great courtroom work - but will it be enough to overcome the unfairness create by the prosecution?

In Chapter 5: A Weak Case we finally get to the good stuff - the trial. Michael Peterson's lawyer David Rudolf dismantles the prosecutions case and the defence calls into question the integrity of the evidence - a fact that impacts the validity of any blood spatter analysis.

Then we meet Dwayne Deavers - the State's blood spatter expert. Except Deavers fudged his experiments and seeming had a hand in a exculpitory report that was never given to Peterson.

It is amazing to see Rudolf map-out and then execute his cross-examinations. The witnesses never see it coming - until 257 medical reports in a dozen binders are dropped on their lap.

Oh - the media is still terrible and the lawyers still have not learned to standup when asking questions.

This episode we have a special guest - the man himself - criminal defence legend - David Rudolf. 

David Rudolf stopped by The Docket to talk to us about defending one of the most high profile cases in modern history. We picked Rudolf's brain about trial strategy, procedural irregularities, and the emotional toll the Michael Peterson case took on him. It was a fascinating talk with a truly inspirational defence lawyer. 

All your questions will be answered: Were Judge Hudson's ruling really so short? Was the documentary a fair representation of what happened in court? And how did Rudolf end up as Michael Peterson's lawyer?

A huge thanks to David Rudolf for his generosity and his time!

In Chapter 4: A Prosecution Trickery the Peterson defence team receives a fax (and yes faxes are still a thing) of the prosecution's autopsy report on Elizabeth Ratliff. And surprise surprise the State's pathologist not only determined that the death was not due to natural causes but went on to find the the cause of death was a "homicidal attack".

Not only did the defence team receive the pathology report two weeks before the trial was to begin, and not only was the report released to the media to poison the jury pool, but the prosecution refuses to seek an admissibility ruling on the tainted but damning evidence.

Its trial by ambush and David Rudolph is pissed.

This episode we look at the prosecution's tactics, discuss the rules and strategy for opening statements, and debate gammer - is it banker's boxes or bankers boxes?