JUSTICE

A matter of opinion

The defence used a poll on the murder case

PATRICIA CHISHOLM,ROSS LAVER January 18 1993
JUSTICE

A matter of opinion

The defence used a poll on the murder case

PATRICIA CHISHOLM,ROSS LAVER January 18 1993

A matter of opinion

JUSTICE

The defence used a poll on the murder case

PATRICIA CHISHOLM

ROSS LAVER

The bizarre and brutal slaying has attracted publicity far beyond the community in which it took place. On Nov. 13, 1991, 31-year-old lawyer Patricia Allen collapsed and died on an Ottawa street after she was struck in the chest by a pointed steel bolt fired from a crossbow. Soon afterward, police charged her estranged husband, Colin McGregor, 31, with first-degree murder. As Allen’s friends and colleagues across Canada expressed their grief, women’s groups charged that her death was symptomatic of a rising tide of violence against females. Early last month, an estimated 250 people attended the unveiling in an Ottawa park of a monument—bearing Allen’s name and those of six other murdered women—to the victims of male violence. And on Dec. 22, the tide of public sympathy for the slain lawyer helped to convince Justice Louise Charron that McGregor was entitled to a trial by judge alone, rather than by a judge and jury—a rare decision in a murder trial. Charron issued her ruling after reviewing the findings of a public opinion poll that indicated that a majority of 375 Ottawaarea respondents were unsympathetic to his plan to plead not guilty by reason of insanity. Declared defence counsel Norman Boxall: “I think the poll proves what every thinking person knows—that there is prejudice about this case.” Although pretrial polls are common in

the United States, their use in Canadian criminal cases is still rare.

Usually, surveys are used to support a defence request to move a trial to another community. But Boxall argued that McGregor wanted to be tried in Ottawa because his client needs daily contact with his psychiatrist to mount a defence. As well, Boxall said, the case has been so widely publicized that he doubts whether McGregor would receive a fair hearing from a jury elsewhere. Instead, he cited the findings of the 13-question survey, conducted by Angus Reid Group Inc., to support his bid to exclude a jury from the case—the first time a poll has been used for that purpose in Canada. Boxall declined to say how much the poll cost, but other industry representatives told Maclean ’s that the going rate for such a survey is between $7,000 and $10,000.

The Crown attorney in the McGregor case, Andrejs Berzins, opposed the request for a judge-only trial and argued in court that the poll results should not be used to support the application. Among other things, Berzins questioned the timing of the survey, which was conducted over a three-day period beginning on Dec. 7, one day after the anniversary of the 1989 slaying of 14 female engineering students in Montreal and a spate of publicity about the “white ribbon” campaign opposing violence against women. In her ruling, however,

Charron said that she had “serious concerns with respect to the apprehension of bias, actual or perceived, which would exist if a jury trial was held” in Ottawa.

In both Canada and the United States, opinion polls are frequently used in cases involving trademarks, patents and charges of obscenity. One of the first criminal cases in Canada to utilize poll findings was the 1990 trial of a 26-year-old Kincardine, Ont., mother who was accused—and later acquitted—of murdering her 11month-old son. Her lawyer, Jack Pinkofsky, said that he paid Reid “several thousand dollars” to survey Kincardine-area residents about their attitudes towards the accused woman. Based on the findings, he said, the judge agreed to move the trial to Toronto. Said Pinkofsky: “I think there is a real place for polls in crimi_ nal law. If courts are going to make z decisions based on the public interest, g you need proper statistical evidence.” 5 Still, other legal experts note that while such polls may be beneficial to defendants, they are only available to those who can afford them. Said Brian Greenspan, president of the Ontario Criminal Lawyers’ Association: “This is not a fair situation. If we are going to use more of these polls, then they should be funded by legal aid.” For *his part, St. John’s, Nfld. lawyer David Orr, who defended one of the Christian Brothers charged in the Mount Cashel sexual abuse scandal, said that he considered a poll to measure the impact of publicity on his client’s right to a fair trial. But Orr said he decided against it because the survey would have cost $25,000—money that his client did not have. McGregor, who was unemployed at the time of his wife’s death, used money contributed by his father, a former Montreal travel agent, to help pay his poll costs.

More recently, Halifax lawyer Joel Pink, who is defending one of three men charged in the shooting deaths of three McDonald’s restaurant employees in Sydney, N.S., commissioned a poll to support his request to move the trial off Cape Breton. Said Pink: “Polls will be used increasingly in the justice system to ensure that applicants receive a fair trial.” Even so, Pink said, the judge rejected the request for a change of venue.

Another potential problem for criminal lawyers, Orr said, is that the polls they commission may not always produce the results they want. “If the other side gets wind of the fact that you didn’t find any substantial bias, they might try to use that information against the defendant.” Such a situation confronted Toronto-based Decima Research several years ago after it did a nationwide poll for a client accused of distributing obscene material. Recalled Decima senior vice-president Michael Sullivan: “We wanted to see if the material offended community standards. Lo and behold, it did.” The survey’s results were never made public.