The Docket

In Chapter 3: A Striking Coincidence we look at some breaking news - there was another staircase death! The prosecution sets the stage for a similar fact application. What is similar fact, when is it admissible, and would this fly in Canada? Spoiler Alert: prejudice destroys probative value in this fight.

In Chapter 2: Secrets and Lies we look at the role bad character evidence can play in a trial. In Peterson's case the prosecution made the most tenuous of links between Peterson's sexuality and a motive to commit murder. The prosecution's theory was pretty speculative and it was way prejudicial. But maybe that is what the prosecution was counting on.

We also look at the initial stages of trial preparation - identifying the facts, testing your presentation, and getting your client ready to testify. 

And Peterson also comes to the realization: the poor don't stand a chance in the justice system.

It is like deja vu all over again as The Docket Podcast returns to an episode-by-episode examination of a real life crime docu-series.  Only this time its all about The Staircase instead of Making A Murderer.

In December 2001, novelist Michael Peterson called 911 to report that his wife Kathleen had fallen down a narrow twisting set of stairs and died. The prosecution and police did not believe it was an accident and soon Peterson found himself charged with his wife murder. The trial that follows was one of the most bizarre, prejudicial, and high profile court cases of the century. 

And now the 2004 French television miniseries by Jean-Xavier de Lestrade documenting the trial of Michael Peterson is available on Netflix - with 3 new bonus episodes.

Join us - criminal defence lawyer Michael Spratt and former federal prosecutor and law professor Emilie Taman - as we dissect The Staircase chapter-by-chapter. Each podcast we will break down the legal strategy, evidentiary issues, and give our opinions on the case - with a Canadian twist. 

In Chapter 1: Crime or Accident, we look at the role that wealth and privilege plays in Peterson's defence, discuss police tunnel vision, and give our initial impressions on the investigation. 

We are going to try to keep each podcast spoiler free about what follows but what quickly emerges is a story about how the presumption of innocence is constantly under attack by police and District Attorneys intent on securing a conviction at all costs.  Ultimately, The Staircase is about every accused person in the United States, Canada, or anywhere.  It’s about what it’s like to be confronted by the full resources of the State when your life hangs in the ballance.

This episode we open with a discussion of an important op-ed written by Amanda Byrd. Byrd, a law student, spent hundreds of hours preparing for a moot court. When she got there, she was told to smile more. Courtroom demeanour is important but critics based on appearance are very unhelpful and smack of sexism.

We then dive into the mandatory minimum sentence debate. The Liberal government promised to reform these out-dated, unfair, and counterproductive sentencing straightjackest - but they have not lifted a finger to make good on their promise. So Senator Kim Pate has stepped up to the plate and introduced legislation to restore judicial discretion. Bill S-251 is an ambitious bill that will give court a safety valve to depart from any minimum sentence - including murder.

Huge thanks to Kim Pate for inviting us into her office to talk about her very important and principled bill.

We tried to keep it short this week. We failed. But who could blame us - I mean we were talking about Budget implementation bills.

More than a year ago, Prime Minister Justin Trudeau stood in the House of Commons and spoke some truths about omnibus legislation. He said that, for many years, the previous government used omnibus legislation as a way of avoiding debate. He complained that the Harper Conservatives would “put everything into a piece of legislation, whether it had links to it or not.”

Trudeau was right. Omnibus bills were abused by the Harper government to the detriment of democracy. Omnibus legislation too often leads to a divisive all-or-nothing approach to the legislative process. This is especially true because when legislation is overbroad, filled with unconnected amendments and unfocused, debate is difficult and evidenced-based study is next to impossible.

So, we did not even bother to read bill C-74, An Act to implement certain provisions of the budget tabled in Parliament on February 27, 2018 and other measures because why on earth would a bill all about implementing the budget include any substantive amendments to the Criminal Code?

However, bill C-74 does just that and the brand new criminal law is buried on page 527 of the 556-page bill. The amendment was so well hidden that even Liberal MPs sitting on the House of Commons Finance Committee, which is currently studying the bill, were caught by surprise.

In addition to implementing the budget, the bill amends the Criminal Code to allow corporations to buy their way out of a criminal conviction. This new legal loophole is called a remediation agreement. It would work something like this. Step one: A corporation engages in a criminal activity such as a massive fraud or conspiracy. Step two: The corporation is caught and charged criminally. Step three: The prosecutor reviews the file and determines that there is a reasonable prospect of conviction. Step four: If the corporation agrees that it committed a crime and pays back all of the ill-gotten profits, then the prosecutor can ask the court to drop all criminal charges.

So we do what parliament won't be able to do - study the new criminal code amendment.

But before we do that we talk about the 50-year embargo on Supreme Court documents - too long? Some former Supreme Court judges think so,

Is it a criminal offence to lick an opponent during a hockey game? After Boston Bruins forward Brad Marchand licked Tampa Bay Lightning's Ryan Callahan during a play off game this is a burning issue. So, Emilie and I dive into the law around consent fights and look at fighting in sport. Why can someone consent to bodily harm on the ice but not off it? What is the legal standard for proving an assault? And when is a lick a sexual assault?

But we lead off the episode on a much more important topic - the tragic case of Hassan Diab who was order extradited to France for his alleged role in the bombing of a Paris synagogue. The evidence was weak and a secret government memo uncovered by the CBC reveals that Canada helped France patch up its case and actively withheld evidence that could have shown Diab's innocence. 

Diab never did face trial in France. After 38 months of solitary confinement in a French dungeon, after missing the birth of his daughter, after losing years of his life, Diab was released and all charges were dropped by a French judge. 

Emile and I discuss why Diab should never had been extradited in the first place and why the Canadian judge did not have the power to throw out a shockingly weak case.

And we end with a short conversation about the Toronto van attack and why there have been no terrorism charges.

This episode we are joined by good friend of the podcast (TM) Peter Sankoff to take a deep dive into Justice Minister Jody Wilson-Raybould's new BOLD justice bill. The legislation, Bill C-75, was billed as a silver bullet to unclog our courts and bring about a “cultural shift” in the justice system. The changes may be bold, but in this case the proposed reforms will likely result in more delays, more racial inequality and more unfair trials.

Bill C-75 promises to speed up court cases by eliminating preliminary hearings for all but the most serious matters. Also, quietly slipped into the bill is a provision that would allow Crown prosecutors to simply file written copies of police officers’ evidence instead of actually calling them at trial to testify. Not only will these changes waste more court time than they save, they will erode fundamental safeguards of trial fairness.

Perhaps most galling is what is not in the new law: the elimination of mandatory minimum sentences. This change would reduce court delays and increase fairness. It also has decades of evidence and study to back up its positive impacts. And, if you care about such things, it was also an explicit election promise.

Bill C-75 has been widely condemned in the legal community. It has also shown that, like her predecessors, Wilson-Raybould is willing to draft reactive legislation based on one high-profile case, is willing to disregard evidence, is willing to sacrifice trial fairness, and is willing to break promises.

The Liberal's flagship justice bill is massive and it is already in trouble. The debate about this bill is not going to be quiet and will not be going away any time soon - so lets dig in....

So episode 73 - 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.

Hey look we have a sponsor! Let the podcast money start rolling in! But seriously a huge thanks to Emond Publishing!

So, after some technical difficulties we have a new episode - sorry about that. Maybe it is time to start one of those Patreon deals so we can buy some fancy equipment!

We start off with another hard topic - another verdict in a case involving a young indigenous victim. We look at the tragic case of Tina Fontaine. The system failed her at every step of her life and last month a jury acquitted the man accused of murdering her. But did the criminal justice process fail her? We take a look at the trial and the jury's verdict.

Then we move on to the bizarre case of a Radio Canada journalist arrested for criminal harassment for doing his job. The charges were dropped but WTF.

And finally we take on the federal government's cherry picking of crime stats. Fear is a very good motivator and this is what our police and politicians depend on. Fear of guns. Fear of gangs. Fear of drugs. Fear of violence. Fear to justify seemingly ever-increasing police budgets.

The reality is that fear of increasing violent crime is completely irrational. Canadians have never been safer.  The most recent crime statistics continue a two-decade trend of decreasing violent crime.  Violent crime rates were 24 per cent lower in 2016 than they were a decade earlier and are lower today than they has ever been in the last half-century.

But the federal government chose to manipulate statistics about gun violence to sell the budget and new firearm restrictions.

Not a fun episode this week.

On Friday Gerald Stanley was acquitted of murdering Colten Boushie. People are often acquitted of serious crimes but this case was different. Boushie was a young indigenous man. Stanley was a white farmer. Boushie's friends said that they had some car trouble and went to the Stanley farm for help. Then Stanley murdered Boushie - for no real reason. Stanley said that Boushie was trying to steal some of his property and he accidentally shot him. So the best case scenario is that a white farmer shot a young indigenous man over some property.

But there was more to the story. The night Boushie was killed the RCMP treated his family like they had done something wrong.  In the aftermath of the killing "rural crime" - a dog whistle for indigenous people - was a hot topic in the Canadian Prairie. And then as the trial began the Stanley defence team used their peremptory jury challenges to exclude every potential indigenous juror. 

An all white jury acquitted a white farmer of killing an indigenous youth.

There was justifiable outrage and questions about racial bias in the justice system,

The Prime Minister and the Minister of Justice tweeted their outrage and sadness.  Those tweets also attracted scrutiny - the government should not be commenting on the outcomes of individual court cases. The government should take action to fix problems in the justice system but so far the Trudeau Government has chosen tweets over legislation.

This week we break down the Stanley verdict, talk about the jury selection process, and look at what can be done to make sure there is justice in the justice system.

This episode we look at two high profile murder case in Toronto. First, the case Berry and Honey Sherman who Toronto police now say were murdered.  Berry's cousin Kerry Winter says he definitely did not do it - except his denial may raise more questions than answers. Then, we look at Bruce McArther, a landscaper and mall Santa, who the Toronto police now say is a serial killer responsible for string of murders in Toronto's LGBT community. There are lots of questions about what police knew and questions have been raised about why an arrest took so long. 

We then turn our sights to the political fall out of the #MeToo movement and look at my opinion piece for the CBC and appearance on CBC's The Current that has pissed of some defence lawyers. Long story short - the presumption of innocence is for the courtroom and should not operate to shield powerful politicians.

And then we take a look at the Ottawa police's absurd carding statistics. According to the police there is no carding problem because they don't do it any more. Police also say crime is on the rise because they can't arbitrarily stop young minority men and ask them their names. We call BS on the police and their statistics.