sarah de vries : april 14 1998

Send Pickton case directly to trial

Doing away with preliminary hearing would avoid conflict

Ian Mulgrew
Vancouver Sun

Tuesday, October 01, 2002

The B.C. judiciary is facing a needless conflict with the media over the muzzling of foreign reporters intending to cover the trial of Robert Pickton, the 52-year-old Port Coquitlam man accused of slaying 11 women.

A preliminary hearing is scheduled for Nov. 4, at which time details of the deaths -- some of which already have been reported locally, on the Internet and internationally -- will be laid before the court by the Crown.

The concern is that foreign publications and broadcast outlets with substantial Lower Mainland audiences will pollute the potential jury pool with sensational, prejudicial reports, destroying Pickton's right to a fair trial.

At least one major U.S. media outlet already has said it will defy any court ban, and history shows even the most responsible and conservative of U.S. media outlets can't pass up the audience-pull of a grisly, true-life who-dunnit.

I don't see why B.C. Attorney-General Geoff Plant hasn't stepped in and solved the problem.

The purpose of preliminary hearings is to ensure the prosecution has a case before proceeding to an expensive, full-blown trial.

And because it's such a one-sided view of the evidence, the Canadian media are routinely prohibited from disseminating the details.

When outrageous crimes garner foreign interest, however, Canadian courts are faced with a thorny conundrum given the domestic market penetration of U.S. and European media.

Our judges have no clout beyond Canada's borders so foreign media can do what they like with information they gather here -- publication ban or not. And even if foreign reporters are barred from the Pickton courtroom, they'll get the story.

Consider what happened in the case involving Paul and Karla Bernardo in St. Catharines.

Ontario Judge Francis Kovacs, who presided at Karla's trial, banned publication of her guilty plea and the evidence against her on the grounds it would destroy her estranged husband Paul's right to a fair trial.

U.S. media were banned from the courtroom at her sentencing but Kovacs still ended up looking like King Canute trying to hold back the tide.

The details were all over the Internet almost immediately and the U.S. media were filled as fast with sordid accounts of the sex-slayings of two schoolgirls.

Rogers Cablevision said it received thousands of complaints from viewers in Ontario, Alberta and B.C. after it blacked out American programs that dealt with banned information.

Former Ontario Provincial Police officer Gordon Domm was arrested on his way to mail 200 letters containing copies of a British newspaper story dealing with Karla's trial. Canada customs also intercepted U.S. newspapers and police visited magazine vendors.

Even lawyers for Paul Bernardo argued the publicity and attention generated by the gag order was probably more prejudicial than the actual judgment.

It was a ridiculous series of events for a democracy. Here is what The New York Times had to say about the "bizarre" situation:

"Two centuries of strife over freedom of the press have taught that gags on speech, even in the name of justice, are instruments of tyranny even when they fail at total suppression. With due respect to Canada's sovereign power and the judge's sincerity, his action is both futile (the news will get out) and wrong in principle. ... Court secrecy only whetted the public's interest. ... Patrols at ... Ontario entry points have stopped shipments of ... newspapers. But no blockade can stop word-of-mouth communication, much less the computer ... Canada's Charter of Rights and Freedoms, which is only a decade old, proclaims 'freedom of the press and other media of communication' and a defendant's right to a trial 'in a fair and public hearing by an independent and impartial tribunal.' The wording of the [U.S.] Bill of Rights is not very different, yet U.S. courts have given life to both a free press and a fair trial. In the United States, the tried and tested way to safeguard these rights is to let the public learn what journalists can learn and report, and to assure defendants of an impartial jury with devices like sequestering and careful questioning for bias. We hope that a regard for free expression, and the folly of enforcing such a gag in today's world, will lead Canada to adopt a different course."

I agree with that.

The Supreme Court of Canada also ruled late last year that judges should lean toward openness and be careful not to limit press freedom without properly weighing the deleterious effects. That's good advice for our top law-makers, too.

Nearly a decade after the Bernardo case, we're facing a similar situation and the B.C. courts will be forced to wade back into the same quagmire if Pickton's preliminary hearing proceeds and the Crown unveils its evidence.

Yet the attorney-general's department has a ready solution at its disposal.

There are many compelling reasons to proceed with a direct indictment and have this case proceed straight to trial -- if only to spare witnesses, the families of the victims and Pickton an even longer wait in jail before he can present his defence.

Such a decision is regularly made in other high-profile cases -- the accused Air India bombers are going directly to trial, as did Clifford Olson.

I can think of no reason why Pickton shouldn't go directly to trial, too.

Muzzling the press is a job for the judges of Baghdad not Vancouver -- especially when it is needless.

© Copyright  2002 Vancouver Sun



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