JUSTICE TAKES A DETOUR

No matter which side you come down on in the murder trial of Kim
Walker, it's impossible to escape the air of tragedy hanging over the
whole affair.

Anyone who has raised daughters can sympathize with the man's
frustration. To stand idly by while your little girl is destroyed by a
drug addict seems like no option at all.

At the same time, of course, no one stands above the law. In the final
analysis, it doesn't matter what kind of man James Hayward was.
Whether he was the devil incarnate or just a nice young lad gone
astray, he had a right to his life.

The jury agreed with this and on Friday afternoon found Walker guilty
of second-degree murder for killing Hayward. That defence lawyer
Morris Bodnar will appeal this verdict is almost a foregone
conclusion, given the confusion over what the jury's options were.

What happened was this. In laying out the facts of the case, Bodnar
and prosecutor Daryl Bode agreed that on March 17, 2003, Walker took a
9-mm Luger pistol to Hayward's house and shot the young man to death.

The problem bedevilling the jury for three days was not in trying to
determine what Walker did. The problem lay in deciding what to call
it.

That proposition prompted Queen's Bench Justice Jennifer Pritchard to
tell the jury that it must find Walker guilty of something. The only
question was what offence it should choose, whether it be
manslaughter, second-degree murder or first-degree murder.

Two days into jury deliberations, Bodnar protested Pritchard's charge
to the jury and asked for the proceedings to be declared a mistrial,
saying Pritchard had overlooked one other option -- not guilty.

This was a stunning turn of events, given that he had earlier
suggested his client would be perfectly happy with a verdict of
manslaughter, which carries a minimum sentence of four years.

However, that was before Bodnar reviewed what the Supreme Court of
Canada said about the case of Grant Krieger, the medical marijuana
crusader who went to the country's highest court to fight charges of
possession of pot for purposes of trafficking.

The judge in his original trial in 2003 did something very similar to
what Pritchard has done in the Walker case -- he told the jury that it
had to find him guilty.

This is something a judge simply cannot do and the Supreme Court said
as much in the judgment it brought down on Krieger last October. It's
worth reviewing here because it very likely points the way to where
the Walker case is headed.

The core of the decision in the Krieger case was that in a jury trial,
it's up to the jury to decide whether the defendant is guilty, not the
judge. When the judge in the Krieger case directed the jury to arrive
at a guilty verdict, he was usurping the jury's function, thereby
depriving Krieger of his constitutional right to a jury trial.

This is exactly what has happened in the Walker case. In spite of the
obvious parallels though, Pritchard neither declared a mistrial, nor
did she give Walker's jury new directions. While that was her
inclination, neither the defence nor the prosecution wanted her to do
that, although for different reasons.

In any event, to give the jury an entirely new set of instructions
after two days of deliberations would have compromised the entire process.

The jury knew nothing of this whole debate and finally settled on its
verdict, but the judge's charge to the jury is almost certain to lead
to an appeal.

"The fact of the matter is, she's committed a serious error of law,"
says Sanjeev Anand, a University of Alberta law professor.

"In the Krieger case, essentially everyone agreed he was trafficking
drugs. There was no dispute as to the facts in that case, either. But
the reality is, the judge can't take the matter out of the hands of
the jury," Anand said.

After looking at the Krieger case, how could Bodnar not appeal? A new
trial is inevitable, which means both families must relive the whole
affair.

What seems incredible here is that neither the judge, the prosecutor
nor the defence lawyer knew about a Supreme Court of Canada ruling
that so fundamentally affects the Walker case.

It's not as if there aren't a number of measures designed to keep
legal practitioners up to date. Judges are alerted about important
cases, including those before the Supreme Court, and have access to
databases that provide weekly updates of new decisions.

There is also a judge's school for new judges, refresher courses for
experienced ones and even case summaries provided to Queen's Bench
judges from their colleagues.

Crown counsel is likewise given a monthly update on Supreme Court
judgments, but the prosecutor in this case apparently didn't know
about the Krieger decision either.

Bodnar himself only discovered it after reporters began asking
questions about the novelty of a judge directing a jury in such a way,
and turned up the Krieger case.

It was mentioned to him by a reporter, and when he heard that, he
looked it up, resulting in his last-ditch challenge to Pritchard's
charge and very likely a new trial.

It's not for nothing they say justice is blind.