A 17-year-old mother was charged with manslaughter after her infant daughter was attacked by one or possibly two huskies in her home in a small town east of Montreal. The mother of the newborn was smoking on a balcony with the child's grandmother for a period of time ranging from five to 20 minutes before the fatal mauling took place. The young victim was nearby on the main floor and was strapped into a portable car seat.
The reason for the attack is presently a mystery. There were a series of interviews conducted by the media with the child's father and neighbours and there didn't appear to be any cautionary signal that the huskies were noticeably aggressive or violent in the past.
The charge of manslaughter was brought by the police within 24 hours of the baby's death. The mother was arrested and held in custody overnight. She later told the French language television network, TVA, that ''it was very difficult because they put me in a cell and I was alone. I didn't have time to mourn.''
The Crown publicly indicated that the unlawful act underlying the manslaughter charge was the failure to provide ''the necessities of life'' to the child. The prosecutor claimed that the decision to proceed with the charge of manslaughter was only reached after there were people who studied the question followed by a discussion.
Any discussion in the Crown's office should have started with the sensible recognition that not every tragic accident is a crime. Tragedies sadly abound where children die in falls from apartment balconies or wade into swimming pools where criminal charges are not contemplated. What distinguishes this case other than it involved a poor, young mother?
Any careful study in the Crown's office would have revealed that the types of cases associated with culpable homicide are situations where a child suffered some form of severe neglect or abuse by the caregiver. Manslaughter is the appropriate charge, for example, when a child dies from malnutrition or perishes after being abandoned in a car by a parent in sweltering heat.
This was a case, however, that cried out for compassion for a grieving mother rather than a hasty turn to the blunt instrument of the law. The ''humanitarian aspect'' that the young mother's lawyer complained was lacking in the case should be corrected at the next court appearance in August. Anything less would serve to perpetuate an injustice.
The veiled witness in the courtroom
The Ontario Court of Appeal was confronted with the challenging question of whether a complainant in a sexual assault case should be required to remove her niqab as she testified in court. Various submissions were made including a position that the niqab is religious attire and should be worn as a right. It was also argued that there are serious equality issues at stake in recognizing the niqab's use in the courtroom.
The central argument advanced during the appeal opposing the niqab in the witness box was that it deprived the defence of gaining valuable clues about the witnesses' demeanour during cross-examination. A smirk or a mocking grin, for example, would be lost to the questioner.
It also must be recognized that a witness wearing a niqab may perhaps result in a greater detrimental effect to the prosecution's case. The facial cues of a distraught complainant may be a factor in assessing her credibility. The sullen and pained demeanour of a complainant recounting a traumatic episode of an alleged sexual assault will likely be dulled with her face covered by a scarf and only her eyes remaining visible to the trier of fact. Although it is inappropriate for demeanour to be a critical feature for judges in credibility assessment, the fact remains that if judges can't see the facial reaction and body language of the complainant, it diminishes the force of her evidence. The problem becomes even more acute if an interpreter is needed. In a she-said he-said scenario, the prosecution's uphill battle only increases.
Ban of publication at bail hearing upheld by Supreme Court
The Supreme Court of Canada upheld the constitutionality of a mandatory publication ban at a bail hearing when requested by the defence. While acknowledging the ban infringes freedom of expression, the Supreme Court, in an 8-1 decision, observed that the publication of the bail proceedings was only temporarily deferred. Ultimately, the essential value of protecting an accused person's right to a fair trial and an expeditious bail hearing outweighed the harmful effects of limiting freedom of expression.
The decision was premised on the goal of averting the disclosure of untested, prejudicial information. However, the Supreme Court also clarified that the media was free to comment on the facts and the particulars of the offence if the source was independent of the court record of the bail hearing. As noted in the majority decision, ''the ban may make journalists' work more difficult, but it does not prevent them from conveying and commenting on basic, relevant information.''
Of course, the journalist's task is simplified if the police circumvent the rules of a bail hearing by releasing damaging, untested information prior to the hearing. Will this judgment be relied upon by the police as justification for splashing news about the accused and the investigation at post arrest press conferences in the name of ''educating the public''?
email: skurka@crimlaw.org
