(This column was published in the North Shore News on Jan. 29, 2003)
The high price of our legal system
By Leo Knight
With the cost of the missing women's investigation estimated to be rising at the rate of $1 million a month, and the estimated cost of the prosecution of the case likely to mirror that, and with the preliminary hearing mired in legal entanglements that have nothing to do with the actual prosecution, the question remains: Why is the attorney general not proceeding by way of direct indictment?
On the surface of it, there doesn't seem to be a reasonable explanation to allow this huge cost to mount when the preliminary hearing does not actually "test" much in the way of evidence. Rarely, if ever, does the defence mount a challenge at this stage in the proceedings. And far be it from me to presuppose what the defence might do, but that seems most likely
in this case.
A direct indictment is the prerogative of the Crown and is typically used in conspiracy cases with mountains of wiretap evidence to save the costs on presenting and arguing the evidence twice. Such is the case in the Air India prosecution.
So, what's so different in this case that we would not wish to save millions of taxpayer dollars simply to have a provincial court judge commit Willy Pickton for trial which, I would argue, is the inevitable result?
What judge is not going to find that evidence exists for a trial in such a high-profile case when we already know from the press reports prior to the hearing that the DNA of more than a dozen of the missing women was found on the Pickton property? This is not to prejudge guilt. That is not the intention of a preliminary hearing. It exists merely to determine
whether there is a case to answer.
(In Canadian law, a preliminary hearing is held to determine whether or not there is enough evidence for a trial before a superior court judge or a court comprised of a judge and jury.)
Many of the substantive legal issues such as admissibility of wiretap evidence or statements again, are typically left for the superior court judge at trial and are rarely adjudicated in the preliminary hearing stage at any length.
Equally, the current legal wrangles which threaten to explode into a gigantic red herring on whether the American media is breaking a ban in a different country than where they publish, would be, for the most part, a nonentity. So, why are we going through this?
And while we're at it, why in the world are the courts attempting to empanel a jury for the Air India trial? By the Crown's own admission the trial might take as long as three years. Any prospective juror would have to put their life on hold for three whole years. No talking to anyone they know about the single thing dominating their life for three whole years.
And, finally, if that isn't enough, their employer only has to guarantee holding a job on their return. Not necessarily the same job they held when the jury duty began. Oh, and any selected juror won't get paid either other than the ridiculously low per diem.
So, weighing all of that, what individual with a rudimentary level of common sense would agree to serve on that jury? On the flip side, without that same rudimentary common sense, should that individual be allowed to serve on that jury?
Realistically, how easy is it to get out of jury duty? As simple as saying at the appropriate time, "He wouldn't be there if he wasn't guilty" or "Bring back capital punishment" or "My favourite show is COPS." And it's exit stage left. It's easier if you want to be creative.
So who does that leave?
Well, there is the unemployed.
Human Resources Development Canada kindly extends the collectible benefits for the period of a trial. So those on Employment Insurance also receive the daily allowance as an extra.
There is also the unemployable and the underemployed. Welfare recipients also aren't otherwise occupied.
Retired persons might feel needed to be called upon to sit on a jury and that's fair enough.
But what about the rest? In looking at that list and given the complexity of a 17-year investigation, who do you think should be empanelled to sit on the Air India trial?
Exactly.
The courts recently decided in a case of an intricate ICBC fraud prosecution that the details were sufficiently complicated that a jury would likely not be able to reasonably follow the case.
Assumedly, this was due to the proliferation of Asian names involved.
One wonders how the Air India case differs given the Crown is engaged in the process of empanelling a jury as you read this.
Just asking.
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