Iain MacKinnon Quoted in Article about Publication Ban

May 14, 2012

Iain MacKinnon was quoted in a National Post article about publication ban in the Tori Stafford murder case.  Iain acted for a coalition of media outlets that included CBC, Sun Media, Postmedia News, CTV, Toronto Star, and Globe and Mail.

A copy of the article is reproduced below.


Lawyers weigh impact of publication ban that kept Terri-Lynne McClintic’s guilty plea a secret

Allison Jones, Canadian Press | May 14, 2012 7:05 PM ET

LONDON, Ont. — A publication ban that prevented the public from knowing for more than seven months that Terri-Lynne McClintic had pleaded guilty to the murder of Victoria Stafford was decried at the time as a sweeping gag order.

Front-page editorials lambasted Superior Court Judge Dougald McDermid’s decision to impose a temporary but total publication ban on the proceedings to protect the rights of eight-year-old Tori’s other accused killer, though they couldn’t say as much at the time.

A jury found Michael Rafferty guilty Friday of first-degree murder, sexual assault causing bodily harm and kidnapping in Tori’s death. All of the details from McClintic’s plea were heard at Rafferty’s trial, mostly when she took the stand as the Crown’s key witness, but the controversial publication ban only ended with Rafferty’s verdicts.

Particularly in high-profile cases, the courts must balance an accused’s right to a fair trial and freedom of the press. Now that the ban has been fully lifted, the details and arguments that went into it can be discussed.

Media lawyer Iain MacKinnon, who argued against the ban, said he still believes there would have been no impact on Rafferty’s fair trial rights if everything about McClintic’s plea was published. It all came out at Rafferty’s trial anyway, he argued, so where is the harm?

“A lot of judges and Crowns and defence lawyers say … ’It’s only temporary and it’s not forever and ultimately the public will know,’ but that’s just not good enough,” MacKinnon said Monday in an interview.

Juries are instructed to judge the case before them solely on the facts and without prejudice and some publication bans call into question the faith the justice system says it has in jurors, he said.

“So does it really make a difference, and does the jury need to be coddled so much that they can’t hear that information through media reports of her guilty plea a year (or two) ahead of time?” he said.

But the jury wasn’t necessarily going to hear everything McClintic pleaded to, Rafferty’s lawyer Dirk Derstine said. She changed her account at trial to say she was the one who physically killed Tori, and Derstine had argued to keep details of her earlier statements that Rafferty was the killer out of the trial.

“The trial’s a very dynamic process,” he said in an interview. “When you’re making tactical decisions years ahead of the trial, it’s pretty hard to say what this all would have meant at the trial.”

Part of the reason it was kept from the public for so long was that even when McDermid agreed to allow partial publication, Rafferty’s defence appealed it to the Supreme Court of Canada. It can take several months for the top court to decide if it will hear a case.

But it meant people were completely in the dark for more than seven months, which was “outrageous,” MacKinnon said.

“For that to sit in limbo for that long to allow the defence to seek leave from the Supreme Court was just far too extreme,” he said. “The problem is the appeal process has to play out. You can’t really deny somebody the right to appeal.”

Whether or not publication of McClintic’s plea hurt Rafferty’s right to a fair trial — although several jurors said during the selection process that they had never heard of the case before — is hard to know. But Derstine said it was not in his client’s interests, so he had a duty to fight it.

“It’s my job to sort of oppose it,” he said. “It’s not my job to balance it … I’m paid to be Mr. Rafferty’s advocate.”

Derstine said he understands and applauds the news media for trying to preserve freedom of expression, though he does take issue with how some vilified McDermid over the decision.

“I understand the opposite argument, believe me I do,” he said. “If I was a member of the media I’d be jumping up and down and trying to get it moved away.”

To any observer it was clear that April 30, 2010, was no ordinary day at the courthouse in Woodstock, Ont. Having been given notice that a major development was to take place in McClintic’s case that might affect the interests of the press, members of the media flocked to Woodstock and parked television trucks all down the street.

There was a heavy police presence and everyone entering the courtroom was subject to metal detectors and pat-downs, which are not normally used at the small community’s old stone courthouse with a grand wooden staircase. Reporters, who are usually asked to turn off devices such as cellphones in courtrooms, were not allowed to bring them inside or use laptops or audio recorders for note taking.

An agreed statement of fact read out in court by a Crown attorney laid bare the horrifying and graphic details of what McClintic said was done to the little girl. Only a few dozen reporters, police officers, family members and lawyers were on hand that day to bear witness.

Following the plea, a barely audible statement from McClintic and victim impact statements from Tori’s family, Rafferty’s lawyer asked McDermid to impose a total publication ban on McClintic’s plea until a verdict was rendered in Rafferty’s trial.

McDermid said there was no time to hear arguments that day, asking lawyers to return May 18, and temporarily acceded to Derstine’s request until he could hear both sides.

Despite the significant developments in a case that had transfixed the country, reporters were not allowed to report anything except that McClintic had been “scheduled to appear.” McDermid scrawled the exact wording reporters were to use on a piece of paper. Bewildered reporters left the courthouse clutching photocopies.

Editorials slamming the decision appeared in newspapers the next day and one included a front-page photo of McDermid.

When court reconvened May 18, Derstine argued that if even the fact of McClintic’s plea was released it would prejudice a future jury pool, as men rarely play subordinate roles in murders and the actions of McClintic would be “inextricably linked” with Rafferty’s alleged actions well before his trial.

“It is difficult to imagine a series of crimes that would give rise to more extreme sentiments among the population,” he said. “The case that comes the closest in my submission is the (Paul) Bernardo case … But the child was not as young.”

MacKinnon, the media lawyer, argued that no detail of McClintic’s plea should be under a publication ban, saying that having the public unaware that a person is sitting in prison for life for first-degree murder “should not occur in a free and democratic society.”

The Crown suggested that only the facts pertaining to McClintic alone should be published. McDermid accepted that approach, ruling the following day that the media could essentially publish all the details of the plea except for those that referred directly or indirectly to Rafferty.

“The public has a right to know now that … there was no intention to conduct a secret hearing and a secret hearing was not held,” McDermid said in his ruling on May 19, 2010. “It is also important for the public to know there was no plea bargain.”

But Derstine said his client wanted to appeal that ruling to the Supreme Court, so the total publication ban was extended until the highest court’s ruling on whether Rafferty could pursue that appeal.

The Supreme Court declined to hear Derstine’s appeal, so on Dec. 9, 2010, media outlets could publish the facts from McClintic’s plea that McDermid had allowed. Her telling of how Tori was raped and killed was not publicly reported until she testified at Rafferty’s trial this year.

So was the ban worth it? Derstine said it’s impossible to know.

“It’s almost unable to be calculated, really,” he said. “What would have occurred if this thing that did not occur had occurred?”


Source: http://news.nationalpost.com/2012/05/14/lawyers-weigh-impact-of-publication-ban-that-kept-terri-lynne-mcclintics-guilty-plea-a-secret/

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