In search of fairness
- Subtitle: Cross Examined
|Photo: Robin Kuniski|
Chris Murphy’s website for Murphys Criminal Law consists of about three pages that include a brief bio and photo of himself, some contact information and a photo from the movie To Kill A Mockingbird. The photo is of Gregory Peck as Atticus Finch, the fictional lawyer in Harper Lee’s novel of 1960, standing alone in a courtroom.
Although Murphy practised corporate commercial law right out of law school, Finch is more the kind of lawyer Murphy has always aspired to be and evolved into in the last 13 years. The Toronto criminal lawyer splits his work between criminal retainer work and those who may not otherwise get legal representation.
“I do a lot of work with people with mental illness and I’ve done a number of murder cases where Not Criminally Responsible was an issue,” he says. “I don’t turn many people away.”
In law school, he was pulled toward taking corporate law courses. He clerked at the Supreme Court of British Columbia and then articled at Macleod Dixon (now Norton Rose Fulbright LLP) where he tried civil litigation. “I didn’t like it,” he says. He applied to be a drug prosecutor and took a 50-per-cent pay cut to go from MacLeod Dixon to the department of Justice in Calgary. A few years later, he left for Toronto to do defence law.
Last year, Murphy represented former Oshawa city councillor Robert Lutczyk who kidnapped city solicitor David Potts at gunpoint in a violent incident in October 2012. Murphy was appointed amicus curiae in Lutczyk’s case in 2015 and represented him at sentencing. Lutczyk had been self-represented and in custody since his arrest in 2012. In a psychiatric assessment, Lutczyk was diagnosed with adjustment disorder, but he did not qualify for the Not Criminally Responsible defence. “I had a lot of sympathy for the guy,” says Murphy. “His treatment in custody was disgusting.”
Lutczyk pleaded guilty in 2015 and was sentenced to more than eight years in jail. Murphy says it’s another example where he just wanted to see someone get a fair trial.
“I think the kind of cases Atticus Finch did are the type of cases I do quite a bit — a person whether wrongfully accused or just under-represented or without sufficient resources. I’m a strong believer that everybody is entitled to a defence whether they are guilty or not,” says Murphy.
This year, Murphy may be weighing in on his most high-profile case yet — one that involves issues of racial tension and the treatment of aboriginal people in Canada. Last summer, he stepped forward to represent the family of Colten Boushie, a 22-year-old First Nations man shot dead on a rural property near North Battleford, Sask. Boushie died Aug. 9 after a confrontation.
A farmer, Gerald Stanley, is accused of second-degree murder in the death of Boushie, a resident of the Red Pheasant reserve. Stanley, 55, pleaded not guilty on Aug. 18 to the murder charge and was granted bail the next day on his own recognizance.
“All that Colten’s family wants is that there is a fair trial,” says Murphy. “The Supreme Court of Canada has said the accused must get a fair trial but also that the public interest is served.
Ultimately, it’s a truth-seeking process and the family just wants to make sure the truth ultimately comes out at the trial.”
At one point in the investigation, key evidence in the case involving the Ford Escape in which Boushie and his friends were travelling left the custody of the RCMP and may have been compromised, says Murphy.
“It’s difficult for the truth to come out if evidence is not properly maintained and it’s difficult for the truth to come out if a fulsome investigation is not conducted,” he says.
Potentially, Murphy says, it would be open to Stanley to bring an application for an abuse of process for lost evidence (s. 7 application) saying he can’t make full answer and defence anymore because a significant piece of physical evidence has been either destroyed or altered.
“A blood-spatter analysis could be extremely significant in this case because it could establish the angle of the bullet, where Colten was sitting — whether he was crouched down or upright,” says Murphy. “There are unlimited possibilities of what a blood-spatter analysis can demonstrate. I was advised by the RCMP that a blood-spatter analysis was not conducted and the vehicle ended up in a towing parking lot.”
Murphy was on vacation in Saskatoon last summer when he was introduced to the Boushie family including Colten’s mother Debbie Baptiste. He returned in September to meet with the family again, attend with them in court and meet with the Crown and police.
Murphy grew up in Saskatoon and is all too familiar with the differences between how indigenous people are treated in the province versus how white people are treated. Murphy’s mother grew up on a farm an hour south of Saskatoon and his uncle still farms the land. As a kid, Murphy went to the farm to “shoot guns and ride horses.” He says it’s a city where one can “palpably” see how First Nations people are treated in the justice system and how non-First Nations people are treated. “I went to Holy Cross High School on the east side of Saskatoon,” says Murphy. “If there was a scuffle on the east side between students, the teachers would call you into the principal’s office and send you home. If the same scenario happens on the west side of Saskatoon, the police get called and the First Nations kids get arrested.”
While Murphy currently has four active murder cases going on in the Greater Toronto Area and Kitchener, he has made it a priority to carve out time in his practice for cases like the Boushie incident. During law school, he spent a summer with the RCMP in North Battleford as a special constable. On occasion, he went with other officers to neighbouring reserves. He saw first hand how differently First Nations people were treated.
Murphy says he has become close with Boushie’s family and their neighbours. “Sheets hang in the windows of their home and raw sewage drops from the toilet to a hole three feet below. They have requested the chief of the reserve get their plumbing hooked up, but there isn’t enough money for it,” says Murphy.
Helping those who can’t afford representatation is important to Murphy. He has a number of clients who are homeless with mental illness — repeat clients who just get caught up in the system. One client he sees on the street all the time has schizophrenia. She takes tip jars from restaurants and gets arrested and put in custody. “She just needs someone to try and get her bail,” he says. A bail hearing through legal aid pays about $150-$200.
He says in many ways the justice system is not equipped to assist those who have mental illness. In 2014, Murphy represented James Jeffery in Picton, Ont. Jeffery had killed his mother and was ultimately found not criminally responsible. Jeffery’s mother and father had gone to a psychiatrist six weeks before the homicide and said their son “desperately needs help.” The doctor advised them that the only way he would get the help he needed was if he committed a serious criminal offence. He killed his mother six weeks later.
Elaine Jeffery was stabbed by her son 13 times, five times in the back, in the kitchen of her home in Hallowell, Ont. in Aug 2011.
“That was a very hard-fought trial and he’s at the Ontario review board doing well, but absent a very vigorous defence on the NCR issue he would have been found criminally responsible and sentenced to life in prison. I personally believe people who suffer from mental illness in Ontario need people to work hard and fight for them,” he says.
Murphy says he is satisfied with where his criminal law practice is at right now. “I have an amazing associate named Anita Nathan. I just play by the rules and try to do my best,” he says.
“When I was at Macleod Dixon, I was representing oil companies and they do a lot of good things but may also do things that aren’t good. Generally speaking, the people I deal with in criminal law I don’t consider them bad people — they are people who have found themselves in circumstances that are unfortunate.”
The preliminary inquiry for Gerald Stanley’s case starts in North Battleford on April 3. Murphy is planning to attend.
He says his objective is to hold the Crown attorney’s and RCMP’s feet to the fire and to make sure that each investigative step that should be taken in the case is taken. He wants to “help Gerald Stanley get a fair trial, which means in part it will make sure the truth-seeking process is followed.”
The main objective is to determine what really happened the night Boushie died. “The family is not seeking retribution — they want to make sure as a First Nations indigenous family with a victim who is an indigenous victim that it is prosecuted and investigated rigorously — that’s all they want.
“At the end of the day, if the Canadian justice [system], which I believe is the finest in the world, is able to render a fair verdict, then I’ve done my job and I believe Colten’s family will be satisfied and sleep well at night. What cannot happen is that it’s not taken as seriously as it would be if it were not an indigenous victim.”
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Jennifer Brown is the editor of Canadian Lawyer InHouse.