Prime Time Crime

 

(Prime Time Crime Dec.  5, 2008)

 

Appeals not very appealing

 

  By Sandra Martins-Toner

For those of us who have had the misfortune of sitting through the trial for those charged and convicted in the murders of our children and loved ones, you know all too well the anguish of having to listen to all of the horrific details of the violent act. From the moment our loved ones are murdered, we have been made to wait months, even years before the trial begins. This is not including all the preliminary hearings, the bail hearings, or any other court proceedings that follow the violent crime.

Throughout this entire process, should there not be a relationship built with the Crown or Appellate Prosecutors working on the files, we are left on our own trying to navigate, and understand the procedures of law. I am certain that others like myself have never felt so alone in their lives.

Perhaps not all of us will have to endure the trauma of an appeal, but from what I have been told, most of those convicted of murder, will appeal their sentence or convictions.

The law states that any person, who wishes to appeal against conviction, sentence, or conviction and sentence, can file for this within 30 days after the imposition of the sentence. They can even apply for an extension to these 30 days should they need more time to file. You can actually find, online, booklets put out by the Legal Services Society of BC, a step by step, do it yourself guide to appeal your conviction, or sentence. I have never seen so much spoon feeding in my life. The rights of the accused are vast and never ending, to the point of absolute madness.

Where amidst all of this chaos is the help for the victims and the families left to sit silently in the courtrooms? Where is the victims/families spoon fed, step by step instructions on what our rights are, and who can help us? Thatís right ladies and gentlemen, there are none. We are nothing more than mute observers of the Criminal Justice System. Placated with the use of a victim impact statement during the trial, and even then we are told what we can, or cannot say.

In recent years the rate of appeals has increased dramatically, to the point that trial judges have begun to feel that their judgments and sentencing is a pointless exercise, one that will only be overturned on appeal anyways. Trail judges are expected to be familiar with 115 items on a checklist regarding the ever more ludicrous complexities of a criminal trial.

I am in no way saying that the appeal process should not be used, in cases where one has been wrongfully convicted, or the trial judge truly made an error in law, but to see those whose only purpose in the appeal process is to make a mockery of our system, and continue to torment the victims/families is unacceptable.

One that comes to mind is Kelly Ellard. Ms. Ellard, originally convicted of beating and drowning teenaged Reena Virk in a Victoria park in 1997 has filed and been granted 2 separate appeals, and has been granted a new trial 4 times. Need I say more? Not one, but two appeals, in which she was given a new trial after her first appeal. The second trial was declared a mistrial, as the jury could not come to a verdict. Ellardís third trial resulted in another guilty verdict, and again she appealed. Now the Appellate Courts have ordered a fourth trial. Where is the logic in any of this? Where is the compassion for the Virk family, dragged back into court again and again, and made to relive the horrific last moments of their daughters life?

The misuse of our Appellate Courts by defence lawyers at the cost of every tax paying Canadian is outrageous. It has become common practice to appeal on almost any grounds, rather than for the three purposes an appeal was designed for, namely; the verdict was unreasonable and could not be supported by the evidence, to correct an error in law made by the Judge, or where an actual miscarriage of justice has occurred. This of course has created a backlog in the courts, already overburdened and perhaps, overwhelmed.

The lawyers are the ones who benefit form this lunacy of litigation. Letís not kid ourselves, some unscrupulous lawyers have made a career out of seeing how much time they can spend in court, whether at trial or on appeals, all too often completely funded by the taxpayers through the Legal Aid system.

The Honourable Justice Michael Moldaver, speaking before a Justice Summit in 2006 in Ontario remarked: ďcontrol of the courtroom belongs to the judges, not the litigants, and that is something that we must never again lose sight of!Ē

It is extremely distressing to hear our Supreme Court Justices stating that ninety percent of what they tell juries is for the Court of Appeal, and ten percent is for the jury.

As a mother, just months away from the appeal of one of her sonís convicted killers, there are no words to express my familyís discontent, and disillusionment in the Criminal Justice System. Just when you begin to feel a sense of healing, youíre faced with an appeal that could potentially acquit the offender, substitute a conviction for a different offence, or order a new trial. As this day looms closely ahead, I am left to sit and wonder if my little boy will ever be able to rest in peace.

Sandra Martins-Toner is the founder and executive Director of F.A.C.T. and can be contacted at sandra@familiesagainstcrime.org.

   

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