RAE CORELLI May 29 1995


RAE CORELLI May 29 1995




Law is not justice and a trial is not a scientific inquiry into truth. A trial is the resolution of a dispute. —Former Ontario Supreme Court justice Edson Haines Screw the law—you get the guy off any way you can. —Activist American lawyer William Künstler

Two men, one a black American legend, a football hero; the other a white Canadian, a small-town book keeper. Both are being tried-the American in Los Angeles, the Canadian in Toronto-for the first-degree murders of two people. Each is guaranteed a public trial by a jury of his peers. Each is guaranteed the right to "make full answer and defence" to the charges brought against him. But beyond that, there are few similarities between the crimi/ nal laws and courtroom procedures under which 0. J. Simpson and Paul Bernardo have been called to account. The most glaring distinction is the role of television. Simpson-fidgeting, doo dling, rolling his eyes-has become a fixture on CNN and CBC's Newsworld, a kind of TV hostage. Bernardo never will, be cause cameras are excluded from Canadian criminal trials. "The difference between the United States and Canada," says Canadian-born Harvard law school professor Paul Weiler,

“is the difference between a country that makes freedom of speech a priority and a country that makes due process and fair trial a priority.”

But there are other, more fundamental differences in the way the two countries deal with people accused of serious crimes—called indictable offences in Canada and felonies in the United States. And top-rated U.S. TV dramas like Law and Order and NYPD Blue have, ironically, made thousands of Canadians more familiar with the American system than with their own. Although both systems grew out of a thousand years of English common law— which concluded in the 15th century that a jury trial was a better way to establish guilt or innocence than a defendant’s ability to withstand torture— they have long since taken separate paths. Just one example: in the United States, police are first compelled to tell a suspect that he has the right to remain silent. In Canada, police ask a suspect if he wants to say anything and then tell him he does not have to.

In Canada, the criminal law is federal; it is the same from the Yukon to Newfoundland. In the United States, some offences—kidnapping, air piracy, counterfeiting—are federal. But most criminal law is legislated by the states, which means there can be as many as 50 different approaches to a given crime. U.S. state superior courts are quicker than Canadian courts to embrace scientific and technical evidence. They work longer hours, often sitting on weekends. But because they are also more informal and argumentative, especially in the south and west, trials and appeals usually take longer. Canadian courts have kept the discipline, formality and the gowns (although not the wigs) inherited from Britain. “A Canadian murder trial is a more Catholic setting with all the paraphernalia of the legal church,” says prominent Toronto trial lawyer Edward Greenspan. “I think that has a sedating effect.” In the United States, prosecutors cannot appeal an acquittal—the jury has the final word. In Canada, the Crown not only can appeal an acquittal but, depending on the crime and other circumstances, the sentence as well. In Canada, superior court judges—often onetime supporters of the party in power—are appointed by the federal justice minister. Crown attorneys, who prosecute criminal cases, are hired by the provincial attorneys-general. In many states, both judges and district attorneys are elected.

Two trials si Canadian an

Never pray for justice because you might get some.

—Margaret Atwood, from her novel, Cat’s Eye

The contrast between justice north and south of the border can be illustrated dramatically by imagining Bernardo and Simpson switching places. If Simpson had been tried in Toronto under Canadian law, his trial would probably be over by now. Its highs and lows would not have been part of the longest running TV crime drama in history, but would have

the differences between Ï.S. criminal law

been recorded in cautiously worded newspaper stories and two-minute sound bites on the news at 11. Jurors, having been warned that they faced six months in jail and $2,000 fines if they ever talked publicly about what went on in the jury room, would have melted away as anonymously as they arrived. The names of the judge and the lawyers would already be forgotten. If Simpson had been convicted of first-degree murder, he would have been sentenced to life imprisonment with no chance of parole for 25 years. He could appeal to the Ontario Court of Appeal against his conviction, but not his sentence, and if he lost the Supreme Court of Canada might refuse to hear his case. If he had been found not guilty, the Crown

fggf might well be preparing an appeal on

the grounds that the judge had made

legal errors.

Bg If Bernardo’s trial had begun earli-

'"H er this month in Los Angeles in■ l|pr stead of Toronto, it would likely

grind on until late next spring and

make both him and ex-wife Karla

Homolka—together with assorted witness-

es, relatives and childhood friends—into continent-wide media superstars with a supporting cast of dozens. Jurors, witnesses and the lawyers—both defence and prosecution—would already be rubbing their hands at the prospect of lucrative I-was-there books, talk-TV appearances and possibly even movie contracts. Because Bernardo is not—like Simpson—a rich

man able to pay legal and other fees that may reach $5 million, there would likely be no high-priced Robert Shapiro or F. Lee Bailey at his side. If he were eventually found not guilty, he would walk out of the courtroom a free man. If he were convicted, he could easily spend 10 years or more on death row while pursuing avenues of appeal far broader than those in Canada. (The prosecution has said it will not seek the death penalty for Simpson if the jury finds him guilty.)

But the really significant differences between criminal justice in California and Canada have more to do with the rules by which trials are conducted than with crime and punishment. And the comparison begins with how juries are selected.

Men who travel much—commercial salesmen, say—make fine jurors. They’re not set in their ways, they’re tolerant. Some big businessmen make acceptable jurors; some, especially those with close-set eyes, tight lips and square jaws, don’t.

They have a pompous disdain for the underdog.

—New York trial lawyer Samuel S. Leibowitz (1893-1978)

In Canada, citizens summoned for jury duty—teenagers under 18, ex-convicts, lawyers, policemen, doctors and veterinarians are ineligible—are only required to give their names, home addresses and

occupations. They are brought to court from the jury pool, usually in batches of 15 or so, until 12 have been chosen. The news media may identity them by occupation but not by name. In murder cases, both the Crown and the defence can each reject up to 20 candidates without giving a reason—the so-called peremptory challenge.

But there is no limit on the number of challenges for cause that almost always arise from doubts about a potential juror’s ability to reach a decision based solely on the evidence. The issue is resolved by asking the individual, under oath, questions previously approved by the trial judge. (There were seven questions on the list in the Bernardo case.) The judge then asks two people—they can be other jury candidates or people picked at random in the courtroom—if they believe the witness. If they do, he joins the panel—unless subject to a peremptory challenge. If they do not, he is dismissed. It took three days to empanel the 12-member Bernardo jury.

Jurors get a travel allowance of $2.75 a day. They get no other compensation for the first 10 days of a trial. After that, they get $40 a day and, after 50 days, $100 a day. There is no free lunch— they have to buy their own. But no matter how long a trial takes, they cannot be fired by an employer while serving—although the boss is not compelled to pay their wages. There are no alternate jurors. In the event of sickness or other problems, a jury can carry on with as few as 10 members. Fewer than that and the judge must declare a mistrial.

Juries are rarely sequestered during criminal trials; they go home at the end of the court day. They may discuss the case with one another but with no one else, including their families. They are free to read or listen to accounts of the day’s proceedings because the news media can report only what transpired in the jury’s presence. At the conclusion of a trial, the judge delivers his final instructions. “He has a duty,” says one Canadian provincial supreme court judge, requesting anonymity (another distinction from many American judges), “to help the jury understand exactly what the charge is, what the issues are for them to decide, and what the evidence is on both sides of those issues so they understand exactly what is expected of them.” After that, the jury is sequestered until it reaches a verdict.

Jury selection in the United States is a more arduous process. In California, citizens ordered to show up for jury duty must fill out a form containing dozens of questions— some dealing with personal matters such as religious beliefs—before they ever reach the courtroom. As in Canada, the questions are first put forward by the prosecution and defence and then approved by the trial judge.

Both sides get copies of the written answers, which can then be used as the basis for grilling prospective jurors even further. “The flaw in that practice,” says one Canadian jurist, “is that you can mould a juror’s thinking by the questions you ask.”

Prosecution and defence in California are each allowed—again, as in Canada—20 peremptory challenges in first-degree murder cases. But if the judge detects a pattern—for example, the lawyer for a black defendant challenging all white jury candidates—he can demand an explanation. “In the United States,” says a Canadian judge, a criminal lawyer for 30 years, “cases are often won or lost on jury selection.” There are no limits on challenges for cause, and the judge decides whether the juror is fit to serve. A juror can often be disqualified because of what he knows about a case or because he has an opinion about the guilt or innocence of the accused. It took more than five weeks to empanel the Simpson jury and choose 12 alternates. And the pay is not much of an inducement—jurors get only $5 a day, no matter how long they sit.

California frequently sequesters juries in murder cases, especially high-profile ones. In the Simpson trial, the jurors are awakened at 6 a.m. They get censored newspapers, can watch only pre-approved videos, are not allowed telephones or radios, are watched during meals together and have family visits only on Wednesdays and weekends. The strain of being cooped up in hotel rooms has long since begun to exact a toll. Seven of the original jurors have been dismissed, and, with the trial seemingly only half over, just five alternates remain. If more jurors are dismissed, the defence and prosecution would have to agree before the trial could continue with 11 jurors. If they do not, Judge Lance Ito would have to order a mistrial. “The OJ. trial is a watershed,” says former Supreme Court of Canada justice Willard Estey. “They’ve probably scared three-quarters of the California population out of ever serving on a jury.”

You’re an attorney. It’s your duty to lie, conceal and distort everything, and slander everybody.

—Jean Giraudoux, from the play, The Madwoman ofChaillot

How a jury is selected is not the only difference in the way criminal trials are conducted in the two countries. Perhaps the most crucial from the defendant’s standpoint is pretrial disclosure. In California, the prosecution and defence are required to tell each other in advance who they plan to call as witnesses—which amounts to revealing the evidence they will introduce. “The thing in the United States that regularly gets the defence and prosecution in trouble,” says Harvard’s Weiler, “is that they haven’t supplied each other beforehand with the names of all the witnesses they’re planning to call and what the gist of their testimony is going to be.” When a lawyer fails to come

clean, the judge can refuse to hear the evidence of a surprise witness.

In Canada, the Crown attorney is under the same obligation as an American prosecutor, but the defence does not have to disclose anything. “If the Crown fails to disclose and the defence can show some prejudice,” says an Ontario trial judge, “the judge may declare a mistrial and, if it’s really gross, he can stay the proceedings completely.”

At the Simpson trial, the defence and prosecution each frequently object to the other’s line of questioning. The pattern—“Objection, irrelevant!” “Sustained” “Objection, hearsay!” “Overruled”—has long since become familiar to Canadian TV watchers, as have the “sidebars” during which lawyers approach the bench to confer in whispers with the judge. Canadian courts do not permit bench conferences. When the Crown or the defence have objections at Bernardo’s trial, Associate Chief Justice Patrick LeSage will have the jury removed before he hears the two sides—and the media cannot report what they say.

In both countries, while lawyers who abuse court mies can be found in contempt, the consequences differ sharply. “In California,” says Toronto’s Greenspan, “if you get a judge so upset that he cites you for contempt, he may fine you 200 bucks. Big deal. Here, they can do real harm to us in the sense that if we bad-mouth the judge, we will be regarded as not within the system.” In fact, there are numerous cases where Canadian lawyers have been jailed for contempt.

Yet, the 1982 Charter of Rights, which embodied many of the principles contained in the U.S. Bill of Rights, may be pushing the Canadian system of criminal justice ever closer to the American. “Our charter,” says one Ontario trial judge, voicing a common judicial complaint, “brought in all the American values.” An example is greater protection against unreasonable search and seizure.

Adding to that pressure for change is television, which has long clamored for access to Canadian criminal trials (LeSage denied a CBC request to televise the Bernardo case). The basis of the English common law, says Estey, was that the honesty and fairness of the courts depended on having the public present to watch them operate. “I think serious crimes frequently have to be seen by the public so they will understand two things: the burden the courts are under to do justice in today’s society and, secondly, the vital importance of the courts in our community. There has been no free and peaceful democratic society in the history of the planet that did not have a free, independent, impartial and accessible court. Television gets that across to the public. Now, the whole population can go down to the courthouse.” And for the past six months, at least at the Simpson trial, that is where much of the population has been. □