Criminal Law

Reflecting on evolution of murder trials over five decades

By Paul Russell, AdvocateDaily.com Contributor

Drawing on five decades of experience in representing people accused of murder, Toronto criminal lawyer John Rosen says Ontario’s judicial system has evolved into one of the best in the world.

“It is a dynamic system, where every participant — defence counsel, Crown attorneys, judges, and police officers — all strive to do their very best, and then some,” says Rosen, founder of Rosen & Company Barristers.

“Over the almost 50 years that I have been privileged to practise, there has been a noticeable improvement in the thoroughness of investigations, thanks in part to advancements in forensic science, blood and fingerprint analysis, and pathology,” says Rosen, who has defended more than 300 clients accused of murder, including serial killer Paul Bernardo, and kidnapper and child killer Min Chen.

He has special praise for the Toronto Police Services homicide squad, calling it “one of the best in the world.”

Rosen, who will celebrate his 50th anniversary as a barrister in March 2020, says trials have become more protracted over the years, but it’s necessary to ensure everyone is given the protections they are entitled to under the Charter.

With Ontario’s strong judicial system, he says people feel confident justice has been done when a jury reaches a decision.

“If you have a weak system, everyone’s afraid of wrongful convictions, but the public also doesn’t want to see wrongful acquittals,” Rosen says, adding that both arise from negligence in investigations, mismanagement of the trial process, the inexperience of counsel or flaws in the law.

“Sometimes wrongful acquittals happen not because of an absence of evidence or the strength of the defence, but because there was incompetence somewhere along the line,” he tells AdvocateDaily.com. “Everybody in the system is dedicated to ensuring those mistakes are not made.”

Rosen recalls that capital punishment was still on the books in Canada when he started work in 1970. Prior to Sept. 1, 1961, any person convicted of murder was sentenced to death, and it was carried out unless the governor-general commuted it to life imprisonment. The last two men convicted of capital murder were put to death by hanging in Toronto’s Don Jail in 1962.

In 1961, he says the Criminal Code was amended to create capital murder with the penalty of death for the killing of a protected person such as a police officer; and non-capital murder, with a penalty of life imprisonment.

In 1976, Parliament replaced these designations with first- and second-degree murder, both carrying a mandatory life sentence. First-degree murder allows for parole after 25 years and second-degree after 10 years. The penalty of capital punishment was also eliminated that year.

Soon after, the 10-year minimum sentence for second-degree murder was changed to provide for a range of 10 to 25 years, at the judge’s discretion, Rosen says. He recalls a conversation at that time with fellow lawyer Sidney Linden, who later became the chief judge of the Ontario Court of Justice.

“Sid predicted that the 10-year parole eligibility for murder would steadily creep up to the point where nobody gets it, and boy was he right,” Rosen says, noting that the minimum parole eligibility is now the exception, not the rule. “So now, there is even more at stake when someone is accused of murder and faces a life sentence.”

Rosen’s second murder trial lasted six weeks, which he says was a long time back then.

“Six weeks for a murder trial is nothing today as we have to be sure that witnesses are heard in full and evidence is placed properly before the jury,” Rosen says.

He recalls former Crown attorney Steve Leggett describing a murder “as just an assault causing death, with some complexity.”

“On a basic level he was right,” Rosen says, explaining the difference is that the justice system puts more resources into murder cases.

“We tend to treat homicides differently,” he says. “In our society, life is precious, so we can’t have people taking other people’s lives, unlike in countries where they have the death penalty, as that seems to foster an attitude of indifference.”

Rosen recalls the words of retired Crown attorney Frank Armstrong, who practised into his 80s and who said, “With every homicide, you have an intersection of lives where one ends and the others continue.”

“It's what makes murder cases so interesting for lawyers and the public — there is always a missing witness,” says Rosen.

For the public’s sake, he says the justice system has to find out what happened, and if there is a way to prevent similar deaths.

Murder trials are fairer now, Rosen says, thanks to the efforts of the police and all the other players in the trial, but it really comes down to the jury.

“As representatives of the public, juries are now more sensitive to the rights of the victims as well as the accused,” Rosen says. “When people sit on a jury, something happens, where they just want to do the right thing. Jurors really are the great equalizers.”

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