Tuesday, February 11, 1997
Editorial wrong, lawyer wants to set record straightI am writing in response to your editorial which appeared in the Dec. 21 edition of The Leader-Post dealing with the decision in the Ternowetsky and Kummerfield matter. I reviewed your comments and they are extremely disturbing. Your comments on the law are incorrect and your review of the facts is simply wrong. One might forgive you for the former, but certainly not for the latter. It is also disturbing these comments were made after the jury's decision but prior to sentencing. A judge cannot comment directly on what you have said. Further, because sentencing was pending, it would have been inappropriate for me to comment publicly on your editorial. Now that sentencing has been completed, I believe some effort should be made to set the record straight.
You state there should be an appeal because "he almost directed the jury to the manslaughter finding when he said if the jury rejected manslaughter, only at that point should it consider first-degree murder and the issue of sexual assault and forcible confinement".
The judge correctly stated the law. You cannot consider the issue of first- or second-degree murder until you have determined what took place indeed was murder. If the jury could not find that murder had occurred, then assuming the two did cause her death, the only verdict they could return was manslaughter. The issue of sexual assault and forcible confinement arose only in the context of whether it was first- or second-degree murder. That is the law as set out in the Criminal Code and expanded upon in numerous Supreme Court decisions. Your statement as to the law is wrong and it is unfortunate you incited many people with that statement without doing some very basic research.
Secondly, you took issue with Justice Ted Malone's comments about the 45-minute to one hour gap and suggested it would be wrong to suggest the Crown was at fault for failing to show what happened. Malone did not say this was a "fault". All Malone pointed out was the onus is on the Crown to prove, if they are alleging a sexual assault, that it took place. The two accused had testified as to what happened this combined with the physical evidence (no torn clothing and no evidence of injuries of a sexual nature) supported their testimony no sexual assault had taken place.
Surely you are not suggesting the Crown should not be expected to prove its case beyond a reasonable doubt? In this country we do not convict people because of what someone thinks may have happened. There are regimes where that does go on. I would hate to think it is the position of the editor of The Leader-Post we should be moving to such a system.
You then refer to the comment attributed to Malone that the jury should bear in mind the victim was a prostitute when considering whether she consented to sexual activity. No one at any point in the trial suggested in any way that Pamela George was any less a victim because of her background, occupation or otherwise. To the contrary, all parties took steps to ensure the character and background of George was not made an issue.That should have been abundantly clear to anyone who listened to the evidence at the trial or to the arguments of Crown and defence counsel. The accused's position was that George had been picked up by them in her capacity as a prostitute and the oral sex she performed on them as testified to by them was again in her capacity as a prostitute (it was consented to). The harsh reality of the situation is she was working as a prostitute that night and part of what a prostitute does is provide sexual services. All Malone pointed out was if that was what was going on, then it would not amount to sexual assault at law. On the other hand, if she was being forced to provide those sexual services, it would be an assault at law and whether she was a prostitute or not made no difference. Past sexual history should not be considered. On the other hand, the circumstances of what was going on at the time of the alleged assault must be considered.
Finally, you state it is disturbing Malone brought up the matter of reduced mental capacity because of drunkeness. Set out below is a portion of Crown counsel's comments made at the outset of the trial to the jury: "One last comment I wish to make, and again I just want to touch upon this because it's an issue that may well be important in your ultimate deliberations, and that is the issue of alcohol consumption. I have already made reference to a 40-ounce bottle of Southern Comfort that was involved here. There will also be some evidence about some beer that was consumed, although the evidence about that is much more vague and, again, those are some facts you are going to have to determine yourself as to what, if any, beer was drunk or when it was drank or what effect it may have had upon the accused.
"Drunkeness will have some bearing possibly on your verdict. Again, His Lordship will be the one who will have to tell you that, in due course, as to what effect it have -- can have in a particular case, how it can affect intent and whether or not it may have the effect of removing intent or perhaps reducing a charge from murder to manslaughter again. I just mention that briefly in passing."
The prosecutor repeated this view when arguing before the jury at the close of the trial. He suggested they should reject the third-party defence theory out of hand (a direction which Malone also gave the jury, but which does not seem to cause you any concern) but on the issue of manslaughter and specifically the question of intention, they would have to give this some very "serious consideration".
The Crown prosecutor was quite correct in making the comments he did and Malone on the evidence was compelled by law to address the effect of drunkeness on the issue of intent.
The Crown called witnesses to deal with the issue of the effects of alcohol on intent. A Crown witness pointed out that because of the amount of alcohol consumed, the accuseds' ability to "know what they were doing was likely" to result in death may very well have been affected. The issue is not whether or not they knew they were hitting her or causing her bodily harm. They admitted to that. The question is whether or not they knew it was likely to result in her death. Further, medical evidence was led indicating the injuries she suffered would not lead one to normally expect death to follow. This would be the case if you were cold sober. In other words, even if you ignored the issue of alcohol consumption, you still would not have expected her to die based on what took place. It should be noted Malone instructed the jury the issue of drunkeness did not apply to the question of whether a sexual offence had occurred. He expressly told them on that issue, drunkeness was not a defence.
What is disturbing is not the verdict, but the casual way you ignored the facts and the law in your editorial for what on the face of it appears to be sensationalism or bowing to current political winds. In Quebec they managed to have a judge removed from his position; in Saskatoon there is a similar effort under way; so why shouldn't we have one in Regina as well? Who cares whether or not the facts as reported by you are correct or not?
Finally, what I find particularly troubling about your editorial in this particular case is when the trial first began, an issue was raised the press had not been given free and open access to the proceedings involving selection of the jury. No one suggested the temporary problem of being present when the jury was being selected would in way effect fairness of the trial. Certainly it did not have any effect on the victim's family, the accuseds' families, the accused or the Crown. Nonetheless, because there may have been some perception the rights of the press had been infringed, a mistrial was declared. That cost the accuseds' families, the victim's family and the two accused needless additional hours of anxiety and anguish. It cost the taxpayers of Saskatchewan thousands of dollars as a result of having to reconvene the trial. Nonetheless it was done to protect the rights of the press to be present.
Now, by your editorial you have made it clear while your rights must be given a high priority and respected, when it comes to the rights of a citizen to a fair trial and to be convicted only if the Crown proves its case beyond a reasonable doubt, you are quite prepared to trample on those rights for your own purposes. You have no hesitation in turning to the courts to enforce your rights to freedom of the press. It is unfortunate, you choose to criticize a judge in your forum when he has done nothing more than enforce similar rights of an accused facing trial on a very serious charge. It is even more unfortunate you carried on in this fashion knowing full well a trial judge cannot by law publicly challenge your unsubstantiated allegations.
Fox was Alex Ternowetsky's lawyer in the case referred to above.
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