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Criminal

Sealed warrants aim to ensure fair trial for accused

Calgary criminal lawyer Ian McKay worries that the man accused of being the Toronto serial killer won't get a fair trial if the legal battle to have warrants in the case unsealed is successful.

“There’s a balancing act when it comes to the public’s right to know versus impeding police work, as well as an individual getting a fair trial,” McKay tells AdvocateDaily.com.

While investigating the actions of the suspect, police were granted 88 search warrants, which McKay says is an extremely high number.

“It appears they had been doing an extensive investigation on the accused for some period of time,” he says.

Some media outlets have fought to have the warrants unsealed, according to CBC News.

McKay says if he was representing the accused man, he would have serious concerns about what has already been reported.

“It appears there is a great deal of information out there and some people have probably convicted him in their minds prior to going to trial. He has been called a serial killer,” says McKay, principal of McKay Criminal Defence LLP.

“When there is so much publicity about a certain crime, I do have a concern that this person might be already perceived as guilty by some if it goes to trial.”

McKay, a former Crown attorney, says certain police work needs to be kept under wraps so as not to harm the integrity of the investigation.

“Police will start an investigation and keep it as quiet as possible because they need to gather evidence from this individual,” he explains. “We don’t know what the police know and when they knew it. They have to balance between being silent in order to catch the person they think is committing the crimes versus providing the public certain details and being accountable.”

McKay says police will often use innovative techniques to try to solve a crime.

“If you let the public know what these techniques are, it burns their covert abilities in that investigation and in future ones. We need to be careful about the integrity of that process,” he says.

Police will go before a judge to obtain judicial authority for what is called “an information to obtain a search warrant” or an affidavit, McKay says.

Officers need to apply for a search warrant, production order or the authorization for a wiretap.

McKay says it is one thing to release an affidavit to the defence counsel — who will go through it with a fine-toothed comb — and another to release it to the public, even if it’s vetted.

“You will have thousands of people looking at it and putting their collective minds together, meaning there could be the potential to identify a confidential informant, for example,” he says.

In the collection of evidence, innocent people’s privacy interests could also be at stake, says McKay, who is not involved in the case and comments generally.

“Police could run a licence plate, and it may identify a person associated with the accused, but hasn't done anything wrong,” he says.

There’s also the issue of police obtaining evidence that wouldn’t be used in a trial but is still in the public domain, McKay says.

“If you start releasing affidavits to the public, you have a potential jury pool reading all of this. A jury isn’t supposed to take that into account, but we know that sometimes they do.

"I would be arguing that as much information as possible be kept away from the public until trial,” he says.

Some of the information McKay says he’s seen in media reports about certain cases has been sensationalized.

“If you put a story out there that turns out to not be true, a retraction after the fact is often not enough,” he says.

If a judge agrees with the media to unseal documents and a criminal case goes to trial, McKay says, as defence counsel, he could always issue a challenge for cause to determine if a juror could judge the accused in a fair manner.

A challenge for cause could disqualify a potential juror for bias, or prior knowledge that would prevent proper evaluation of the evidence, he says.

“For my clients, I fight to keep warrants sealed and take steps to protect them for this reason,” McKay says.

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