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.


*** 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.

Robert Tapper and the perjury trial: for the record

Robert Tapper (Tapper Cuddy)

One day after two Winnipeg officers were acquitted of perjury and other charges, independent prosecutor Robert Tapper sat down with CBC News and offered his view and explanation of what happened in the abruptly-ended case.

The full transcript of the conversation with CBC reporter Mychaylo Prystupa is what follows. His story is here.

Used with permission.

CBC: You’ve said that what happened in court [the acquittal] hasn’t been portrayed accurately in reports. What happened?

Tapper: There was never any doubt that the civilians— if I can call them that, hotel people — were not going to be able to identify the police officers. I told that to the jury when we started. This case was going to be proved, I said to the jury, like the spokes of a wheel — a piece at a time.

A large part of that was going to be on documents, on GPS entries, on passcard details from the exit and entries of the police station, the notebooks of the accused police officers and their evidence that they had given at the preliminary inquiry into the charges against the drug offender.

As well as the civilians as to what they said happened — even though they couldn’t say  who had done what when.

There were some agreed exhibits. The agreed exhibits were the notebooks of the accused — come back to those … The accused are the people who stood up and answered to the charges. Those two officers. The exhibits were agreed to be their notebooks and their cell phone records. At the end of my case, the defence stands up and says, ‘well, you didn’t prove the accused are the accused … and not just people who strangely somehow had the same names.’

To which, I of course said, ‘what are you talking about?,’ but unhappily, the judge bought into that notion so I said that I’m going to seek leave to reopen and call a police officer to ask the very question: ‘point these two gentlemen out — the gentlemen whose names are already there, on their notebooks.’

I had thought, obviously, that with the agreement as to the entry of these exhibits with their names all over … that these were there notebooks, that these in fact, were their notebooks. And I told that to the jury when we started.

So to say the least, the case unfolded in a way I didn’t desire or expect. And we’ll see at the end of the day whether that survives.

CBC: There’s a current of thought that the officers got away on a technicality.

Tapper: Well it is a technicality. It had nothing to do, whatever, with whether they lied under oath or were unlawfully in a dwelling home. It had to do with whether or not the Crown — me — proved their identity — not in the sense of who entered into the particular hotel room, which was the substance of the offence, but their identity in the sense of whose notebooks these were and whose cell phone records that these were.

I took a very different view of that, but that was ultimately what the judge ordered. And that is clearly a technicality.

CBC: So you agree with that sentiment that’s out there?

Tapper: Well yes and no. I mean technicalities form a proper part of the law. And there’s no question about that. A famous American jurist, a hundred years ago, said that the history of liberty has largely been the observance of procedural safeguards. I don’t have any problem with technical defences. I just happen to think this particular one was wrong.

CBC: You have a second prosecution against police officers coming up.

Tapper: I have at least two more.

CBC: How much confidence do you expect the public to have in your ability to prosecute these police officers successfully?

Tapper: Well, you know, that’s a delightful question. I’ve been practicing law for almost four decades. I think I know my way around the law. This shouldn’t of happened.

And I suppose the public could be concerned about that and say: ‘Was he some wet-nosed junior that made a mistake?’ I have to hope not. Do I have the confidence to do it? Yes. If I didn’t, I wouldn’t. I’ve done more trials than most people.

I don’t think that this was a mistake. You see, that’s the thing. I don’t think this was a mistake. I think this was a ruling of some interest and that I will do my utmost to overturn.

But, to this moment, As bad as I feel about this, and I do — I still don’t think it was a mistake. The court may tell me otherwise in due course, we’ll have to wait and see on that one.

Let me also tell you that while I have two … you asked about prosecutions that two officers … I have two next week [inaudible]. I’ve done many of these. I’ve obtained many convictions …
 Most people who know me know that I don’t lack in confidence, to my detriment. Yeah. I mean, I’m not worried about that.

If the powers that be are worried about that, the’ll react accordingly.

 This should not have happened. When you stand up and say: ‘These are the records of the accused, and the other side agrees … are there two Mychaylo Prystupas out there?

I think traditionally, the witness stands up, points out and says: ‘That’s the man that did it,’ right? But not every case is like that. and in this particular case, there was no doubt that the hotel people could not identify … the police officers, five and a half years later. It was an innocuous event, as far as they knew in the middle of the morning, six in the morning.

CBC: So you were using their records…

Tapper: We had all kinds of evidence, including their notebooks.


Tapper previously said he plans to appeal Justice Brenda Keyser’s ruling and may file the necessary paperwork with the Manitoba Court of Appeal this week.