Court process trivializes little girl's death

By Wallace G. Craig
North Shore News
May 27, 2009

In exercising our fundamental freedom of thought, belief, opinion and expression, we must determine the point at which robust criticism of a judicial decision mutates into contempt of court. Never forget that once judicial decisions are rendered, they are in the public domain, and they become grist for the mill of public scrutiny and comment. In 1981, the extent of the public’s right to criticize judicial decisions was clarified in a case in which the editor of the Peace River Block Daily, Glen Dalke, was charged with contempt of court for publishing stringent criticism of a bail decision. Dalke: “I am sick and tired of hearing of people who have been arrested for one crime or another and released on bail only to go out and commit yet another offence.  “The penal system was, at one time, a way to protect society from these criminal types and when the judiciary followed the old adage of punishment fitting the crime, it worked well, however, our society’s permissiveness has now infiltrated this body that was set up to protect us. 

“An example of their leniency is as follows: A man charged with rape of a local woman was remanded in custody to wait for the preliminary hearing. While in custody in Prince George, he was again brought before the courts and this time was released on bail. In November, 1980, at his preliminary hearing, a trial date was set up in conjunction with the spring assizes and he again was released on bail. A couple of days ago, the same person was charged in the Edmonton court with the recent rape and murder of a Whitecourt woman.        “I realize that judges are only human and are not infallible, however, I feel that anyone who commits such a serious crime should remain in custody until he has either been acquitted or proven guilty.” In dismissing the application for committal, Mr. Justice Craig Munroe iterated the 1936 reasons of Lord Atkin – in Ambard v. Attorney-General of Trinidad – that “Justice is not a cloistered virtue; she must be allowed to suffer scrutiny and respectful, even though outspoken, comments by ordinary men.” Munroe emphasised that it is a prima facie legitimate right of every citizen to criticize a particular case or series of decisions if done without casting any aspersions on the motive of a judge or court and without abuse.

Over the years since Dalke vented his frustration with criminal justice only one thing has changed – it is now common for victims to attend bail hearings and trials. Consider The Province’s front-page eye-catcher on May 22: “Parents of Dead Children Fed Up With the Justice System – Families Press For Changes to Make Courts More Accountable.”  One related story by staff reporter Susan Lazaruk – Victim’s Mother Outraged Suspect Fighting Charges – concerned the tragic death of Michael and Laurel Middelaer’s four-year old daughter Alexa who, while feeding a horse at roadside in Delta
on May 17, 2008, was run over by an errant driver.  The Middelaers attended court on May 21, 2009, an appearance by crown and defence counsel to fix a date for trial. After being informed by the crown that it will present 15 civilian witnesses, 15 police officers and three experts, and that there will be challenges under the Charter, the judge set May 31, 2010, as the date for the trial to begin.
Outside the court the Middelaers disagreed with the case being made so complex and said the case will show why reform is needed in the criminal justice system. Laura 266 Middelaer read from a prepared statement: “I was at the scene that day of Alexa’s  death.

Everyone that was at that scene knows that Mrs. Berner is responsible for that death of our child” She called Berner’s fighting of the charges – “a slap in our collective faces” – and said “I just wonder where the accountability is.” In my opinion the Middelaers are experiencing the dark side of Canada’s experiment with an entrenched Charter of Rights. They watch a simple case being
transformed into Charter-of-Rights justice entailing protracted investigation before charges are formulated; endless pre-trial disclosure of the crowns case, minutiae included; and a trial scheduling system that serves the interests of the defendant and defence counsel to the extent that a criminal trial of the defendant is transformed into a trial of what was done by the police and prosecutors. And looming over this quagmire is the prospect of plea bargaining on the eve of trial. The untimely death of an innocent four-year-old little girl is being trivialized; it is an injustice that ought to be condemned.