Decision to forgo preliminary hearing questioned after trial

Hey there, time traveller!
This article was published 22/02/2018 (2253 days ago), so information in it may no longer be current.

In the aftermath of an acquittal for the man who was accused of killing 15-year-old Tina Fontaine, scrutiny surrounding the evidence presented against Raymond Cormier has raised questions about why the second-degree murder case was sent straight to trial.

“If there had been a preliminary inquiry, the Crown attorney might have looked at their evidence and been in the position to say, you know, do we have a reasonable prospect of conviction here?” Scott Newman, spokesman for the Criminal Defence Lawyers Association of Manitoba, said Friday, a day after the jury’s not-guilty verdict for Cormier. 

The Crown’s office ordered a direct indictment in December 2016, cancelling the preliminary inquiry that had been set for the following May. The preliminary inquiry would have required the Crown to present its case to a provincial court judge tasked with deciding whether there was enough evidence for the case to go to trial in the Court of Queen’s Bench. Skipping a preliminary hearing with a direct indictment is meant to be done rarely, according to Manitoba Justice’s policy. It can happen when there’s a need to protect certain witnesses, for example, and the policy also notes direct indictments can be ordered “to protect ongoing police investigations and operations.”

After Crown prosecutors had presented all of their evidence against Cormier, his defence lawyers, Andrew Synynshyn and Tony Kavanagh, asked the Court of Queen’s Bench Justice Glenn Joyal to effectively throw out the case. They argued a properly instructed jury would have no grounds to convict Cormier because of the lack of evidence in the case. They wanted the judge to halt the case before giving the jury an opportunity to decide, but Joyal dismissed the request, saying there was enough evidence for jurors to interpret and come to their own conclusions.

The same legal test would’ve been in play during a preliminary inquiry, so Cormier’s case may have headed to trial even if he’d had a preliminary hearing, Newman said. 

“Justice Joyal was of the opinion once he had heard all of the evidence, that there is enough evidence for it to go to trial. I don’t know that every judge would necessarily arrive at the same conclusion. I think there’s a very real question about whether or not this is a case that should have been sent to the jury, particularly when you’ve got such a weak case that it’s almost non-existent and you’ve got a history of wrongful convictions in Manitoba. When you send a case that weak to the jury, you’re almost inviting them to do the wrong thing, and that’s a dangerous thing for us to do in this province,” Newman said. 

Kavanagh said in an email he wasn’t told why the Crown was proceeding by direct indictment in this case, saying Cormier was upset when the preliminary inquiry was cancelled.

“We did advise that we believed the preliminary inquiry should proceed and provided several reasons why, including it was only a few months away and that we merely wanted to examine some of the key civilian witnesses. We argued delay was not a valid issue,” Kavanagh wrote in an email to the Free Press.

“We think the opportunity to examine these witnesses and appraise the evidence would have benefited both Crown and defence alike. Although we made several agreements prior to trial, the use of a preliminary inquiry would likely have reduced it even further.”

A spokesperson for Manitoba Justice said Friday evening in an email: “While we are not able to address this case specifically, the Crown chooses to pursue a direct indictment in matters where it’s deemed appropriate, based on the circumstances of the case, the accused, victims or witnesses.”

Direct indictments have to be approved by the justice minister or deputy justice minister of Manitoba, but the Crown’s office doesn’t have to publicly reveal its reasons for requesting one. When a direct indictment is requested in Manitoba, it’s rarely denied, according to statistics dating back over the past decade Newman obtained via a Freedom of Information request. 

“There’s no requirement for them to tell the court or anyone in the world why they’re doing it (a direct indictment). Should they, to fully inform the public? Maybe. But you also have to be careful you’re not tainting the eventual trial,” Newman said.

“It should be case by case, and of course we’ll only get more buy in and more respect for the administration of justice if we’ll full and frank and transparent and we explain to the public why it is that decisions are being made, so more transparency is better than less transparency, but you always have to keep in mind that the ultimate goal is to have a fair trial.”

The lack of a preliminary inquiry in this case meant Tina’s family and supporters were hearing the evidence for the first time during Cormier’s three-week jury trial. 

“I don’t think there was ever going to be a way to lessen the shock of what was heard in court because it was such a tragic outcome,” Newman said of Tina’s death. 

Cormier, 56, was found not guilty Thursday of killing Tina in August 2014.

Her body was found wrapped in a duvet cover weighed down with rocks in the Red River, making the teen’s death highly suspicious, but an autopsy couldn’t determine how she died. There was no DNA evidence linking Cormier to her body, and the duvet cover was the only crime scene investigators had to work from. Cormier’s DNA wasn’t found there. Fourteen hairs found on it belonged to women other than Tina, court heard. 

Although three Crown witnesses testified they had seen Cormier with a duvet cover that was the same or similar to the one found with Tina’s body, his defence team argued their testimonies couldn’t be trusted.

Police may have tainted the evidence by showing witnesses only one photo of a duvet cover instead of giving them a range to choose from, Cormier’s defence lawyers argued, and may have relied too heavily on witnesses who either had a grudge against Cormier or already believed he was guilty.

The Crown argued its strongest evidence against Cormier were what prosecutors said were his own confessions to murder, secretly recorded by police during a six-month undercover investigation. But the wiretaps were open to interpretation.

Even though there was no official cause of death for Tina, Crown prosecutors argued she was likely smothered or drowned, neither of which would have left any signs on her body.

The pathologist who conducted the autopsy testified he could not rule out the possibility of a fatal overdose if there was a combination of alcohol and the prescription drug gabapentin in Tina’s system.

There was no evidence of gabapentin and deaths from it are rare, but there are also no tests that can indicate its presence in anything other than toxic levels.

DI+POLICY.PDF