Borutski trial part one: how it will unfold

The long-awaited trial of Basil Borutski, charged just over two years ago with first-degree murder in the Renfrew County killings of Carol Culleton, Anastasia Kuzyk and Nathalie Warmerdam, got underway in Ottawa on Monday October 2nd.

The trial, expected to run for 17 weeks, provides the opportunity for a number of interesting discussions, which I hope to raise in this and subsequent posts over the length of the trial.

This week, I am going to focus on procedure. I have two general reasons for doing this: most people who do not work in law do not understand the complexities of a criminal trial and too many people get their understanding of criminal process from American television, movies and cases. This case also presents a number of unusual procedural issues inasmuch as Borutski, largely silent since his arrest and initial five-hour interview with the police, has refused to retain a lawyer or to enter a plea.

Obligations to the accused

In any trial that carries the possibility of substantial penalties for the accused, the judge has an obligation to ensure that the rights of that individual are protected. In this case, the judge has met this obligation by, first, moving the trial out of the small rural community where the women were killed to Ottawa and, second, appointing a lawyer to be what is called “amicus curiae” or “friend of the court.” This lawyer does not represent Borutski but is there to ensure procedural fairness and to make sure Borutski understands what is going on.

Because of the nature of the charges and the emotional impact of the killings of the three women on many of the potential 100 Crown witnesses, the judge has also appointed a lawyer as special counsel to cross-examine any of the Crown’s witnesses who do not want to be questioned directly by Borutski.

Presumption of innocence

One of the most important tenets of criminal law in Canada is that anyone charged with a criminal offence is presumed to be innocent until they are proven guilty, beyond a reasonable doubt, by the Crown. In other words, it is the Crown Attorney who must lay out the evidence in the case, which must be sufficient to persuade the judge or jury of the guilt of the accused person, with virtually no doubt remaining. The job of the defence is to poke holes in the evidence presented by the Crown so that the judge or jury is left with reasonable doubt, which is all that is needed for the accused to be acquitted.

For this reason, criminal trials always begin with the Crown presenting its evidence, and that is what is unfolding in the Borutski trial right now.

The first two days were occupied with jury selection and procedural matters, and on Wednesday October 4th, the Crown began to present its case. (In the United States, jury selection might well have occupied much more time, since the criminal trial system there allows for much for detailed and aggressive interrogation and investigation of potential jurors.)

During the first two days, Borutski, while present in the courtroom, did not challenge any of the potential jurors and was unresponsive to questions from the judge.

Step by step

On the first day of the trial proper, the Crown placed into evidence and played in the courtroom the five-hour interrogation interview with Borutski that took place the day after the three women were killed.

Over the next several weeks, we can expect to see much more evidence presented by the Crown, including as many as 100 witnesses called to testify, all of whom can be cross-examined by the defence.

Once the Crown has completed its case, the defence can call its evidence, including witnesses. Both the Crown and the defence can then present their closing arguments. Following this, the judge provides instructions to the jury, after which the jury begins its deliberations.

In Canadian criminal trials, the jury’s verdict to find the accused guilty or not guilty must be unanimous. If the jury is not able to do this (this is often called a hung jury), the judge has the option to declare a mistrial. This puts the Crown in the position of having to decide whether or not to start over with a new trial.

Once the jury has presented its verdict, its role is completed and the jurors are discharged by the judge. It is the judge who determines the penalty for the accused, if he was found guilty by the jury, following the presentation of further evidence by the Crown and the defence and consistent with requirements in the Criminal Code and other sentencing guidelines.

This is different from the situation in the United States, where juries often have a role in sentencing. One other important difference between Canadian and American jury trials is that jurors in Canada are not free to speak about what has gone on during their deliberations, whereas American jurors are free to do so (and often do!).

Next week: Whose voices, whose truths, will we hear throughout the trial?

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