The details of the allegation are disturbing: a scandalous luring of a University student, a gruesome murder, a grisly dismemberment, and then a twisted disposal of the body parts, via mail, to elementary schools. Then the chase across Europe and odd sightings of a man, we know as Luka Magnotta, until the capture is made, almost innocently, as Magnotta in a German Internet Café surfed the web for the disturbing details of his own case. In a previous post, I discussed the extradition issues with the case but Magnotta, by consent, returned quietly to Canada to face a number of charges, including first-degree murder under s. 231 of the Criminal Code, committing indignities to a human corpse under s.182 of the Criminal Code, mailing obscene materials under s.168 of the Criminal Code, publishing obscene materials under s.163 of the Criminal Code and threatening Prime Minister Stephen Harper under s.264.1 of the Criminal Code.
Now, with the start of Magnotta’s preliminary inquiry, the case is back in the media spotlight as Magnotta’s defence attempts to exclude the media and public from hearing the preliminary inquiry evidence. Today, Quebec Court Judge Lori-Renée Weitzman denied the defence request.
But what was this request all about?
A preliminary inquiry, as I explained in a previous post, is a procedure to determine if there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. This vetting process is permitted for only those indictable offences, which the accused has elected to be tried before a superior court judge. The hearing is heard before a provincial court judge who hears the evidence and decides whether to commit the accused for trial on the charges or any other charges arising out of the evidence or to discharge the accused for the lack of evidence on an essential element of any of the charges. It should be noted that the “right” to a preliminary inquiry is not absolute. The accused can waive the preliminary inquiry and consent to committal on all or some of the charges. The Attorney General can also circumvent a preliminary inquiry by preferring a direct indictment under s.577 of the Criminal Code. In that case, no preliminary inquiry takes place and the matter proceeds directly to trial in superior court.
The powers of a judge sitting as a preliminary inquiry judge are many and varied and set out in s. 537 of the Criminal Code. As a matter of course, the preliminary inquiry judge will order a ban on publishing the evidence heard under s.539 of the Criminal Code. This is done to preserve the integrity of the trial process, particularly where the trial will be before a judge and jury. A publication ban will ensure that the public remains impartial and ensures that evidence, which might become inadmissible at trial, is not within the public domain. However, such a ban on publication does not include a ban on the public attending the inquiry to hear the evidence first hand. It merely bans publication or distribution of such evidence heard.
The Magnotta defence, however, wanted the judge to go that extra step by banning the public from attending the inquiry under s.537(1)(h), which gives the judge the power to “order that no person other than the prosecutor, the accused and their counsel shall have access to or remain in the room in which the inquiry is held, where it appears to him that the ends of justice will be best served by so doing.” There is also a general power to exclude the public under s. 486 of the Criminal Code on the basis that the judge “is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.”
Although the reasons for dismissing the application has yet to be released online, it is instructive to review two other equally disturbing infamous cases of Paul Bernardo and Robert Pickton, where somewhat similar requests were made, in an attempt to understand the dynamics of such an application. In Pickton, the defence made a motion for exclusion of the public on the basis the case was so media intensive and with thestate of modern-day publication technology,
” a simple ban on publication of the evidence would not serve the ends of justice and would not preserve the accused’s right to be tried before a fair and impartial tribunal. This was particularly so, submitted the defence, as the American media was not bound to the order and could, therefore, publish the evidence thereby tainting the jury pool once the matter came to trial. In dismissing the application, except for permitting the usual ban on publication, and leaving open the defence’s right to re-open the application, Judge Stone recognized “the conflicts which arise between our tradition of open access to the courts and the principles encompassed by the right of freedom of expression versus the rights provided to an accused person in order to ensure that he or she receives a fair trial.” Even in that context, Judge Stone recognized, as emphasized in the Supreme Court of Canada Dagenais case that such an order was “exceptional.” Ultimately, Judge Stone agreed with Justice Oppal of the British Columbia Supreme Court, wherein Justice Oppal stated in the Murrin case: We live in an era that is often marked by high degrees of pretrial publicity which often features revelations of prejudicial pretrial evidence. In fact, it can be safely said that sometimes media coverage can be described as frenzied. However, I do not think that the justice system is so fragile that appropriate corrective measures cannot be taken in certain cases so as to ensure that an accused's right to a fair trial is not jeopardized.
In the end, the Judge released a very specific ban on publication, specifically prohibiting the information to be placed on the Internet. As an aside, in the 1996 SCC Canadian Broadcasting Corp. v. New Brunswick (Attorney General) case, the SCC sets out specific factors in considering such a ban in light of the conflicting Charter rights of an accused's right to fair trial and the right to public access to our criminal justice system as well as freedom of the press under s.7 and s.2(b).
Conversely, in the Bernardo case, it was the Crown and the families of the victims, which requested an order prohibiting the public from hearing and watching the videotape recordings of the crime when presented as evidence in court. The court permitted this limited ban out of public decency and respect for the victims. Ultimately, the tapes were destroyed.
Of course, although the application was dismissed for Magnotta, this will not be the end of the matter. As the case goes to trial, there will, no doubt, be a revisiting of this issue of publicity and publication of the case in the media. At that time, the issue will be whether or not an impartial jury can indeed be found in light of the intense media exposure of the case and ultimately whether even the worst allegations can produce a fair trial.