http://edmsun.canoe.ca/News/Edmonton/2006/03/29/1510458-sun.html
Wed, March 29, 2006
Justice is blind - here's why
By DOUG BEAZLEY, EDMONTON SUN
Today, we start a new feature at the Edmonton Sun. Twice a week in this space, reporter Doug Beazley takes a closer look at what goes on behind the headlines coming out of the courts and off the streets.
We'll start by looking at the Michael White case. How did a man accused of killing his pregnant wife get bail? Why did the courts finally revoke that bail, and why were news outlets allowed to report the facts before White's trial actually started? Read on.
Justice is supposed to be blind. But sometimes - rarely, but it happens - justice lifts her blindfold long enough to take a glance at the kind of press she's been getting.
It happened late last month in the case of Michael White, accused in the murder of his wife. Liana White's slaying was one of those crimes which can galvanize a city in communal horror: she was young, pretty and four months pregnant. The Whites had a three-year-old daughter.
So when Michael White was granted $10,000 bail in October, public reaction ranged from cynicism to outright fury. White's neighbours in Castledowns gathered 2,000 names on a petition calling on the courts to lock him up again.
"Tell me what the judge was thinking," said a despairing Maureen Kelly, Liana's mother.
But that was the problem: blind justice occasionally blinds everyone else. When White applied for bail, his lawyer asked for a publication ban on the bail hearing. Under the law, the judge was compelled to grant that ban.
The law provides for pretrial publication bans on evidence because of the innocent-until-proven-guilty rule. The bans protect defendants from juries which might be prejudiced by reading or hearing about evidence published or broadcast before the trial begins. In Canada, it's a basic right.
But like all rights, it sometimes gets tangled up with other rights - like the right of all citizens to see, and know, that justice is being done. Which is where the media come in, as the eyes and ears of the public. If we don't know - or can't tell - what happens in court, the public loses faith.
There are three reasons in Canadian criminal law for refusing bail: if there's a risk the accused won't show up for trial, if he's considered a public threat and likely to reoffend, and in order to preserve "confidence in the administration of justice."
Everyone agrees White met the measure on the first two reasons - he had no criminal priors and was keeping his nose clean. But on the third, he stumbled. His case had been the subject of intense press coverage; murdered pregnant women tend to rate that kind of exposure.
"So even though White's behaviour while on bail had been exemplary and he had no record, the Crown decided to appeal the bail decision," said Barry Zalmanowitz, the Edmonton Sun's lawyer.
"Those appeals are very rare, and we saw we had a great opportunity here - to challenge the publication ban."
Pub bans in the Court of Appeal are discretionary, not automatic. The Sun and other media outlets opposed a bid by White's lawyer to impose a ban on the appeal court hearing. This time, the court agreed with the media. It ruled that open coverage of the appeal wouldn't corrupt White's odds of a fair trial. As a side benefit, lifting the veil temporarily would allow the court to explain why a lower court granted White bail in the first place.
Police investigations don't stop when a suspect is charged. When White applied for bail, police believed a broken lamp found in the Whites' bedroom might have been the murder weapon. That suggested a crime of impulse - possibly manslaughter instead of murder - and it argued for bail.
But by the time the Crown appealed bail, the medical examiner had decided Liana died of a stab wound to the neck. The Crown's theory had changed from one of an impulse killing to one of the accused "introducing" a weapon to the murder scene - which implied planning, premeditation.
The judge who granted White bail applied the right test and came to the right conclusion, based on the evidence police had at the time. But to the public at large, it looked like the courts were treating a savage crime far too lightly.
"Sometimes, these bans can leave an unfair impression of the system in the public's mind," said Zalmanowitz. "It builds suspicion."
But remember, we're talking about human rights here: there's always a tradeoff. Lifting the publication ban at the appeal court allowed the courts to explain an unpopular decision, and restore public confidence in the justice system.
But it also meant evidence was released in advance of trial - and Michael White has not been convicted of any crime.
To be fair, said local criminal lawyer Robbie Davidson, the judge in White's trial will have to allow his lawyer a lot of rope to screen prospective jurors before the trial starts. "You have to have confidence in the system. But it cuts two ways - the accused must have confidence in the jury," he said.
"Everybody comes to court carrying baggage. We all have to make sure that baggage gets left at the door."
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