Defending the indefensible

(Sun News Network)

Our nation’s system of justice is stronger because of defence lawyers like Evan Roitenberg.

Yes, that’s bound to be an unpopular viewpoint, especially today.

But that’s the truth, as uncomfortable or inconvenient as it may seem.

Because it’s also equally true (however unheralded or swept under the rug) that each person in Canada — no matter how justifiably vilified, loathed or downright nasty their conduct  — has the right to be represented and defended to the lengths the law will allow.

Although I personally have never been, nor plan to be, in such a position, I’m glad for this.

As we all should be.

Roitenberg (if you don’t know by now) is the defence lawyer for disgraced hockey coach Graham James.

The facts disclosed by the Crown at James’ sentencing hearing Wednesday regarding his abusive and reprehensible treatment of Theo Fleury and his cousin Todd Holt years ago were difficult to hear.

After years now of observing and writing about all manner of serious and sick crime of all kinds, Wednesday’s hours-long hearing was, in part, a cut above when one considers the depth of the described betrayal.

James’ conduct was and is indefensible on any level.

Cries for him to be locked up for a long time have reverberated loudly.

The Crown has requested he serve six years of prison.

Roitenberg, as all expected, sees things differently.

He spent hours Wednesday explaining to Judge Catherine Carlson why that is; why he feels the law should grant James a conditional sentence to be served in the community of 18 months or less.

Roitenberg, a skilled public speaker with a clear flair for rhetoric, rose to speak after James himself delivered a carefully-prepared apology from the prisoner’s box.

Here’s a taste of his first few minutes of submissions Wednesday, verbatim.

“Your Honour, if it were up to Graham James, that would be it … he would throw himself on the mercy of your Honour — recognizing the depth of his actions, recognizing the effect of his actions and recognizing how wrong he was,” he started.

“But Mr. James was foolish enough to hire me, and I can’t allow him to do that,” he said.

“Because his crimes, regardless of the insight that he recognizes now, have legal repercussions. And it’s not just for him to say, ‘I know I was wrong and I accept what the court will bring.'”

“And in that vein, I’m hoping to persuade you this afternoon, that the Crown’s submission as to what would be the appropriate and just disposition here is anything but appropriate and just. I’m hoping to persuade you that if a court in Alberta some 15 years ago had all the facts, the principles of totality would have kicked in. They would have kicked in to a certain degree as would factors as they pertain to rehabilitation and restoration.”

“The man who stands before you today stands before you rehabilitated as far as anybody could be having done whatever was asked of him for a number of years, to develop the insights that he now has. To have put in place strategies to ensure he doesn’t put himself in a situation where he’s tempted to offend, strategies that take away the temptation to offend, and insights to allow him to channel his energies otherwise.

“Because that’s all been accomplished already,” he said.

“But to do that, I have to tell you some things about Graham James. I want to share with you the man, because with the greatest of respect — having sat here all morning and having been Mr. James’ counsel for some two years now or so, I can tell you it’s like representing young women in Salem, Massachusetts centuries ago who were wrongly accused of being witches.

“Because there’s really nothing in many people’s eyes that I can say today that will change their opinion of Graham James. There’s very little I can do to dispel the myths and the notoriety of the monstrous nature of the beast that has been built up in many people’s eyes. But I can’t do that. I don’t have to do that.

“My task is to enlighten one jurist.”

And there’s the rub, that sharpened point — one, I’m sure, causes countless law-abiding citizens to gnash their teeth in frustration and take to the comment sections on news websites in droves.

The hard truth is it matters not what people think of Graham James, what they may want to see happen come his March 20 day of reckoning; what punishment they feel befits his despicable conduct.

It matters what Carlson thinks. It matters what the law says she must do in this case, which in legal terms is very unusual for a number of reasons.

Despite what some may personally think about Roitenberg’s vigorous defence of a man dubbed “the poster boy for parole reform” or “possibly the most hated man in Canada, certainly the most hated man in hockey” (Roitenberg’s own words as he derided the media glare over the case) — his job, his duty — is to defend James to the best of his abilities.

Because that’s the law. And Roitenberg knows all about that. He’s very good at what he does.

And regardless what one thinks about Graham James and his hideous and evil conduct — he — like you, me and everyone else in this great country — is entitled to present the best defence one can get within the bounds of the law.

Got a problem with the law?

Think sentences for child abuse are too soft? Think it’s wrong, as Greg Gilhooly does, that drug-traffickers can get more jail time than child-molesters?

Call or email your MP and demand change.

That’s your right as well.

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*** As a note, I don’t know Roitenberg. I’ve never once had a personal conversation with him.

Any opinion expressed above about his work is based on my experience of it in court over the years, and is just that — my opinion.

Other notable cases of his in recent times: Here, Here and Here.

Why details are important, or: get with the times

(National Post)

Yesterday’s post about Graham James’s bail release inferred that there was something hinky going on in terms of how the system worked in this case.

It’s my belief today that there was, but not solely related to James’s case as I (and many others) incorrectly implied yesterday.

Instead, the issue is more of a systemic one relating to how the media and public are often left in the dark in a criminal justice system that’s supposed to be open to a fault, according to countless judges.

But in Manitoba, there’s nagging issues with the system that point to it lagging far behind the times.

To her credit, the Crown on the case, Colleen McDuff, was forthright in her explanation of why things happened the way they did, best explained by CP and a few lines from Mike McIntyre’s story in today’s FP.

CP:

A Manitoba Crown attorney says there was no secrecy involved in releasing convicted sex offender Graham James on bail.
Colleen McDuff says it is “just how the nature of his release
played out.”
McDuff says most of the conditions had been fixed in court last
week and there were only a few details to be worked out.
One was the address where he would be reporting to police in
Montreal.
James was expected to be in a Winnipeg court yesterday to
finalize his bail conditions.
But documents indicate that a justice of the peace signed off on
his release late Friday afternoon after James posted 10-thousand dollars in cash.

But, crucially, there’s more: From Mike Mac:

Crown attorney Colleen McDuff said there was nothing “sneaky” about how James was released.

“There was no conspiracy here. He was treated the same way as everyone else who gets bail,” McDuff told the Free Press.

Pollack originally granted bail to James on Dec. 7, despite objections by the Crown. A court-ordered ban prevents specific details of the hearing from being published. James didn’t get out that day because lawyers still had to draft the various terms of his release, which Pollack asked to be sent to him in chambers for final approval.

James was never required to make a further court appearance on the bail.

Once Pollack received the conditions, he drew up the order and it became official. James then had to wait until Friday to come up with a $10,000 surety he is required to post. Once the money was in, James was free to go.

His case was put on Monday afternoon’s docket but simply as a way to keep track of it. He is not required to make personal appearances unless ordered by a judge.

While I’m still a little unclear about the distinction ‘justice of the peace’ versus Judge Pollack himself signing off on bail conditions in chambers, this explanation makes more sense in terms of process.

It’s weird, and to be honest, I hadn’t ever encountered things being done this way, but whatever — I’m not the most experienced or smart courts reporter in the world.

We already knew James was getting out.

The problem is, the Crown could have expected the public to be confused by the process as it unfolded and taken easy steps to correct it.

When reporters left the courthouse on Dec. 7, they were under the understanding that the hearing would continue yesterday, a bail order would be signed off on in open court and it would be publicly put on the record.

Yes, reporters would be there to witness it. Yes, TV cameras would be camped outside the Law Courts, yes, there would be questions and requests for interviews.

Forgive us. That’s our job, and justice system participants like it enough when they need something to reach the public’s eyes and ears. We’re part of the landscape and ignoring that reality just won’t work. That much is clear.

But in the case of James’s release, the system didn’t work as the public was led to expect it would —Instead, it went the other way, resulting in the suspicion that something was going on in the shadows, that maybe James was getting special treatment.

Given the ever-increasing roadblocks put up in the media’s way in modern times, it’s only natural — and should have been expected — that there’d be some headscratching and a few questions for how his release came together in the end.

It’s not surprising, or a stretch for the Prosecutions Division to have seen that there was/is immense public interest in this case and responded accordingly on Friday by issuing a news release to media outlets that James had met his bail conditions ahead of the perceived schedule and what those conditions were.

It really would have been that simple.

And not without precedent: When the Crown applies for a publication ban in high-profile cases, they’re often quick to send a fax off to newsrooms to notify them of what’s being sought — likely for the reason they could oppose it should they choose.

It happened just the other day in connection to the Mark Stobbe murder case.

When the charges against James were formally laid recently, the Crown faxed the court informations (public charging documents) over to newsrooms explaining clearly what was happening and the restrictions on publishing certain information (the names of two of the complainants).

The media, and therefore the public, knew what was happening, it was a clear signal from the Crown that it wanted to get in front of what was certain to be a highly-publicized case and make sure nothing incorrect or prejudicial to the case or alleged victims got out.

So, from this, it would have been a simple matter of following through to keep everybody in the loop.

I get that Crowns are overworked and don’t have time to be worrying about the media’s needs, which, I admit could be perceived as overwhelming in some cases.

But how much time did McDuff have to spend on Monday giving interviews to clarify a situation that could have been easily cleared up with an emailed or faxed statement regarding what happened?

It’s not rocket science.

And — in the absence of keeping the public in the loop by some other means — is it inconceivable that the Crown, faced with a request to deal with James’s conditions and release on Friday, could have said ‘not today, see you in court as scheduled’?

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Recommended Reading: National Post article on Digitizing the Law.

Come on. Even the Queen (sometimes known as the Crown) is on Facebook now.

Your ‘open’ justice system

(CBC)

From The WFP:

Former junior hockey coach Graham James quietly wrapped up his high-profile bail hearing last week when lawyers set out the conditions of his release.

James is believed to have been released from the downtown Winnipeg Remand Centre late Friday and flown to Montreal, where he will be allowed to live pending his trial on sex abuse charges…

It was set to resume Monday afternoon, but lawyers brought the matter forward last Friday.

James’ name didn’t appear on the public docket that day, meaning the media and public weren’t aware of it.

From the Sun:

Graham James has been released from jail and is living in Montreal.

The disgraced former junior hockey coach and scout was quietly released Friday afternoon following an appearance before a justice of the peace.

From CBC:

James, 58, was to have had his bail conditions made final in court Monday, but documents indicate that a justice of the peace actually signed off on his release late Friday afternoon…

The judge said he first wanted to hear from the Crown and the defence, and both sides were expected to deliver their submissions Friday. The date for the bail hearing was then set for Monday. For some reason, however, the decision took place Friday.

From CTV:

Convicted sex offender Graham James was given his bail conditions by a provincial court judge this past Friday.

The hearing was originally scheduled for Monday morning. It’s not clear why it was moved ahead.

[For some reason my linking button is not working — but you know where to look for more…]

Sweeping publication ban, hearings held in the background, public not notified.

An ‘I told you so:’ This case has now officially fallen into the black hole of the Manitoba justice system.

To be revisited 2-3 years from now.