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Ban urged due to ‘explosive’ evidence

Details will put fair trial for Pickton at risk: lawyer

Kim Bolan
Vancouver Sun

Thursday, December 05, 2002

Evidence that prosecutors plan to call at the preliminary hearing of accused serial killer Robert William Pickton is so explosive it would prejudice his right to a fair trial if the public were allowed in the courtroom, Pickton's lawyer Peter Ritchie said Wednesday.

Ritchie said he is particularly concerned about Crown prosecutor Mike Petrie's opening statement and said the defence will challenge the admissibility of some of the sensational material.

Ritchie asked provincial court Judge David Stone to impose a ban on publication at the end of Wednesday's submissions so that he could briefly outline the material that he expected to come out at the preliminary hearing.

But Stone refused Ritchie's request, saying that Ritchie himself said earlier in the week that he wanted the public fully informed about his application to close the court during the preliminary hearing.

Stone reserved his decision until Friday morning on the issue, which is being challenged by lawyers for the Canadian and American media and opposed by families of Pickton's alleged victims.

The 53-year-old Port Coquitlam farmer is charged with 15 counts of murdering women who were on a list of dozens missing from Vancouver's Downtown Eastside.

As he has all week, he sat expressionless through hours of legal arguments on whether the media and the general public should be banned from the courtroom.

Petrie conceded that some of the evidence that will be brought forward in the case is of "an explosive nature."

"I expect there will be salacious, graphic types of evidence that will be presented to you," Petrie told Stone.

But he said any impact on Pickton's eventual trial could be dealt with by the routine ban on publication at the preliminary hearing.

Petrie joined several media lawyers in opposing Ritchie's extraordinary request to close the courtroom.

Ritchie said closing the court completely under section 537 of the Criminal Code is the only way to ensure that American journalists or irresponsible members of the Canadian public do not leak information that would taint the jury pool.

"Never mind esoteric Web sites. They are the least of our worries," Ritchie said. "I am worried about"

Ritchie also disagreed with a submission from Vancouver Sun lawyer Barry Gibson, who argued that if Pickton were discharged by the judge after a secret preliminary hearing, there would be a public outcry because journalists would not be able to explain what had happened.

"We don't have to worry in this case about a discharge," Ritchie said. "It is not worth talking about."

He disputed Gibson's contention that the media has a role in recording history, especially in such a massive case. Pickton is alleged to be Canada's most prolific serial killer.

"He is worrying about history and I am worrying about a fair trial for my client," Ritchie said. "History comes second."

Petrie, however, supported Gibson's assertion, saying the media is in court as the eyes and ears of the public.

"They are the agency by which the public can be informed," Petrie said.

Petrie said even in cases where there were leaks to the public, such as that of killer Paul Bernardo, the leaks did not affect the fair trial rights of the accused.

"My friend's submissions to you do not meet the mark," Petrie told Stone.

Petrie said the principle of an open court "has been held as a cornerstone of a democratic society."

He said if there are certain concerns about a witness in the preliminary hearing, it might be possible for the judge to exclude people from the courtroom during that testimony without closing the entire hearing.

"I wouldn't say it couldn't happen in this case where a temporary order is sought because of a particular witness," Petrie said.

But it has not been shown that the public needs to be excluded for the months-long hearing to protect Pickton's rights, Petrie said.

"The exclusion of the public is an extraordinary remedy," he said.

Meanwhile, Vancouver lawyer David Sutherland, who is representing four Seattle-area television statements, told Stone that his clients are willing to sign an undertaking that they will not report on the preliminary hearing for their American audience if there is any problem blocking their reports from Canadians via the cable carriers.

The court received conflicting information about whether or not it is possible to prevent the American programs that might contain information from the preliminary hearing from being viewed by Canadian cable subscribers who are included in the jury pool.

Ritchie presented a letter from a vice-president of Shaw Cable that said it is virtually impossible to do so, while Sutherland said his clients feel they have the capability of preventing the material from reaching Canada.

Even if they can block the signals, a promise to the court to do so is insufficient, Ritchie said.

"We all know the undertaking is not enforceable," he said. 

© Copyright  2002 Vancouver Sun

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