Obviously hard to prove

There exists an overwhelming imbalance of power between the state and the individual.

This is an absurdly obvious fact, but, sometimes, the most obvious facts are the hardest ones to prove.

The imbalance of power in our criminal justice system can be manifested through the vastness of the resources available to our prosecution services — dedicated police investigators, access to the best forensic crime labs, and availability of an unlimited parade of expert witness.

Yep, the state also has virtually unlimited money. In one of my cases, it flew a witness across the country to prove a shoplifting case. Seriously, my client stole a $5 pack of cold cuts; the witness’ plane ticket cost hundreds of dollars.

This is the danger faced often by the poor accused.

David rarely beats Goliath in real life.

But defence lawyers love war stories, and these stories can often provide the most compelling evidence of how the criminal justice system is anything but a level playing field. So, here is mine.

In the early hours of June 14, 2006, a number of street youths had gathered and were either sleeping or sitting in a pedestrian underpass near the intersection of Rideau Street and Sussex Drive in downtown Ottawa.

To call this group of youth “squeegee kids” would be charitable. In reality, they were a band of racist and violent thugs.

My client — Mr. H — made the mistaking of walking into their makeshift lair. It was late at night and Mr. H needed to go to the bathroom. He unzipped and urinated in the corner of the underpass. The band of street kids told him to put his “nigger” dick away.

Mr. H responded to the racial slur and a verbal back-and-forth ensued, which escalated to a physical altercation.

The leader of the street gang, who went by the name Cactus, struck Mr. H twice in the head with his squeegee, drawing blood. In the brawl that followed, Cactus was fatally stabbed. 

Mr. H ran from the underpass fearing for his life.

The gang of street kids told the police that Mr. H had walked under their bridge and without any provocation stabbed poor Cactus for no reason, then walked away laughing.

But one of the street kids, J.B., also spoke to the police and gave a very different story.

You see, J.B. was the only one who had run above ground to call 911. He did not have time to talk to his band of friends before the police arrived. He did not have an opportunity to collude in his statement. He told the truth.

J.B. told the police that two of the street kids had attacked Mr. H. He told the police Cactus had hit Mr. H in the head with his squeegee and that Mr. H had fallen to the ground. He told the police that his dog, a pit bull named Hobo, was barking and lunging at Mr. H.

J.B. told the police that all the street kids had joined the fight and Mr. H only took out the knife when he saw he was outnumbered. He told the police that Mr. H had been trying to walk away.

In essence, J.B. provided compelling evidence that Mr. H had acted in self-defence.

This was powerful evidence that proved Mr. H’s innocence. But there was one problem — J.B. had vanished. We could not find J.B. and the police said they could not find him either.

This was good news for the prosecution. Without J.B. to testify, his exculpatory evidence was presumptively inadmissible hearsay.

We made every effort to find J.B. At our own expense, we hired private investigators, tracked down leads, and staked out every shelter, food bank, and drop-in centre in Ottawa.

Nothing.

For months we begged the police to find him. The police said they tried but had exhausted every lead and could simply not locate J.B.

As a last resort, we brought an application (actually, we brought two applications — here and here) to admit J.B.’s hearsay statements to the police into evidence despite the fact he was nowhere to be found.

Ultimately, the court agreed and granted our application. The jury would hear about the statements J.B. had provided to the police.

And here is where we get to the imbalance of power.

Without J.B. in the witness box, the prosecution could not effectively seek to undermine his statements; they could not brand him an unreliable liar.

Before we won the application to admit J.B.’s statements, the prosecution’s case was stronger without him being physically present.

After we won the application, the opposite was true.

And at this point, magically, the Ottawa police located J.B. They found him living in Vancouver’s Stanley Park — more than 4,000 kilometres away — and flew him back just in time for the trial.

A witness, lost to the defence, was only found by the police when it benefited the prosecution.

In the end, when J.B. testified, he tried to sink Mr. H, feigning a lack of memory, but, luckily, he had already told the police the truth on that June night in 2006.

In the end, despite the inherent imbalance of power, Mr. H was acquitted. This one time David beat Goliath.