COURT OF APPEAL
PROVINCE OF QUÉBEC
MONTRÉAL REGISTRY
No: 500‑10‑000287‑936
(500‑01‑017372‑928)
On March 27, 1995.
CORAM: THE
HONOURABLE BEAUREGARD
BAUDOUIN
PROULX, JJ.A.
VALERY I.
FABRIKANT,
APPELLANT - accused
v.
HER MAJESTY THE
QUEEN,
RESPONDENT - prosecutrix
JUDGMENT
THE COURT, on an appeal against the verdict rendered by a jury in
Superior Court, (Montreal, August 11, 1993, Fraser Martin J.) finding the
appellant guilty of four counts of murder in the first degree, one of attempted
murder and two of hostage taking;
Having studied the file, heard the parties and deliberated;
For the reasons given by Proulx, J.A., with which Beauregard
J.A. concurs, and for the concurring reasons given by Baudouin, J.A.
DOTH DISMISS the appeal.
_____________________________
MARC BEAUREGARD, J.A.
_____________________________
JEAN-LOUIS BAUDOUIN, J.A.
_____________________________
MICHEL PROULX, J.A.
The Appellant: In person
Me Michel F. Denis, for the respondent
Crown counsel
Date of hearing: February 13, 1995.
COURT OF APPEAL
PROVINCE OF QUÉBEC
MONTRÉAL REGISTRY
No: 500‑10‑000287‑936
(500‑01‑017372‑928)
CORAM: THE
HONOURABLE BEAUREGARD
BAUDOUIN
PROULX, JJ.A.
VALERY I.
FABRIKANT,
APPELLANT - accused
v.
HER MAJESTY THE
QUEEN,
RESPONDENT - prosecutrix
OPINION
OF PROULX J.A.
Introduction
On August 24, 1992, the appellant, a professor in the
department of mechanical engineering at Concordia University in Montreal, spoke
to 9-1-1 and made known that he had just committed several murders on the site
of the university and that he wanted «to explain the reason why». The evidence
reveals that on that day, the appellant, in possession of several weapons, had
first killed Dr. Hogben, then Dr. Saber, thirdly, Dr. Ziogas and finally, Dr.
Douglas: each of these homicides were committed in a different location. In
addition, the appellant fired two shots at Mrs. Horwood, who survived, bleeding
severely from the gunshot wound. The appellant then took as hostages two
individuals while he was speaking to the 9-1-1 operator. (9-1-1 had initially
been contacted by Mrs. Horwood).
The appellant's involvement in each of these incidents was
reiterated in his opening statement at the trial, and nowhere in the record is
there any doubt on that issue.
Sometime later in the afternoon of August 24th, the appellant
was arrested and eventually charged with seven counts: four counts of first
degree murder, one of attempted murder, and two of hostage taking (forcible
confinement).
The trial commenced in Montreal on March 8, 1993, before a
jury presided over by Fraser Martin J. of the Superior Court. Between March
8th and 25th, the Crown called evidence. The presentation of the evidence was
then suspended for a trial on the issue of the appellant's fitness to stand
trial. Following the verdict of the jury that the appellant was fit to stand
trial, the Crown resumed its case on May 11th and continued until May 17th. On
May 20th, the appellant, who had decided at the outset of the trial to act on
his own behalf, started his defence. He examined seventy-seven witnesses until
July 30th when, after a long series of incidents which will be narrated below
in further detail, the trial judge terminated the defence, with the consequence
that the appellant did not testify in his own defence. However, the appellant
made his summation to the jury, which lasted a few days, followed by the
Crown's summation on August 9th. The trial judge's address followed, and, on
the 11th of August, the jury returned with a verdict of guilty on each of the
seven counts: four verdicts of first degree murder, one of attempted murder and
two of hostage taking.
The appeal
The only ground of appeal raised by the appellant in his
factum relates to the trial judge's decision to end his defence and to refuse
him the right to testify in his defence.
In his factum, which he prepared himself, still being unrepresented
by counsel, the appellant sets out the questions in dispute as follows:
- Does
a judge err in law when he, in response to several insults made by a Defendant,
decides not to allow Defendant to testify but at the same time allow Defendant
to do the summation to the jury?
- Is
it possible to imagine a situation where judge's decision not to allow
Defendant to testify would be justified in law, taking into consideration that
the Defendant was found fit to stand trial by jury? If yes, what is it?
- Is
it possible to imagine any situation where judge's decision not to allow
Defendant to testify would be justified in law? If yes, what is it?
- Is
judge's decision not to allow Defendant to testify such a fatal error which
could be qualified as shocking judicial conscience, provided of course that
such thing does exist in this country?
- Appellant
uses just one ground of appeal: breach by the trial judge of the main principle
of natural justice: audi alteram partem. Appellant reserves the right, in the
case of dismissal of this appeal, to envoke all other other grounds of appeal
in the future action in the Supreme Court of Canada.
The hearing of the appeal
Prior to the hearing of this appeal, at the appellant's
request, the respondent's factum which was originally written in the French
language was translated into English and arrangements were made for the
services of an interpreter at the hearing so that the oral presentation of
counsel for respondent in French could be translated into English for the
appellant's benefit.
On the morning of the hearing, before the actual pleadings on
the merit of this appeal, this Court had to dispose of six motions by the
appellant: (1) in foreclosure against the respondent, (2) to strike the factum
of the respondent, (3) to declare respondent's factum frivolous, (4) to recuse
Justice Marc Beauregard, (5) to recuse Justice Jean-Louis Baudouin, the two
other members of the panel, and (6) for appointment of a lawyer and a court order
to pay legal expenses.
The first three motions were dismissed as totally unfounded.
The appellant withdrew his two motions in recusation. As to the sixth motion,
that motion was dismissed since this Court had already disposed of previous
motions related to the appointment of a lawyer and, moreover, this Court had no
jurisdiction, as requested in the motion, to «order legal aid to provide a
lawyer for the appellant». In fact, on October 12, 1994, the Court dismissed
the appellant's motion «for appointment of a lawyer», by reason of one of
appellant's conditions «that his lawyer must only «assist» him, not «act on
behalf of» him.
Furthermore, at the appellant's request, this Court provided
him with the tapes of the hearing of August 10, 1993 at his trial, though the
appellant was in possession of the full transcript of his trial. A few days
after the hearing, the appellant returned those tapes to the Court, indicating
that, after hearing the tapes, he was not in a position to make the point he
believed relevant at the time of his request.
Finally, the appellant was given permission to add to his
factum, already filed since last June 1994, a memorandum of 45 pages in which
he develops his argument on the sole ground of appeal raised in his factum.
Indeed, right on the first page of this new document, the appellant writes: «Is
it always a fatal error,where a trial judge does not allow accused to testify?»
However, in this memorandum, the appellant makes reference,
in passing, to what this Court considered to be, at the hearing, a second
ground of appeal. It concerns the trial judge's decision to discharge a juror
under sec. 644 of the Criminal code, a few days after the trial had started.
The trial judge ordered the discharge after having examined the juror in the
absence of the other jurors but in the presence of the appellant and Crown
counsel, and after having heard arguments on the issue. The appellant
complains that he was denied the right to cross-examine the juror in the course
of this inquiry held by the trial judge, and, in support of this point, he
refers to R. v. Barrow, [1987] 2 S.C.R. 694. I see no merit in
this ground of appeal. As it has been decided many times in the jurisprudence,
the course to be followed in the application of this section of the Criminal
Code lies in the discretion of the trial judge and nothing in the record shows
that the trial judge erred in that regard. Having disposed of that ground of
appeal, I propose now to deal with the sole ground of appeal indicated above,
which was argued at length at the hearing.
The principles in issue and the issue in the case at bar
Before I discuss the trial judge's decision in the context of
the events which led to it, I feel it is appropriate to set out the relevant
sections of the law and the principles in issue.
Section 650 of the Criminal Code provides as follows:
650. (1) [Accused to be present] Subject
to subsection (2), an accused other than a corporation shall be present in
court during the whole of his trial.
(2) [Exceptions]
The court may
(a) cause the
accused to be removed and to be kept out of court, where he misconducts himself
by interrupting the proceedings so that to continue the proceedings in his
presence would not be feasible;
(b) permit the
accused to be out of court during the whole or any part of his trial on such
conditions as the court considers proper; or
(c) cause the
accused to be removed and to be kept out of court during the trial of an issue
as to whether the accused is unfit to stand trial, where it is satisfied that
failure to do so might have an adverse effect on the mental condition of the
accused.
(3) [To make
defence] An accused is entitled, after the close of the case for the
prosecution, to make full answer and defence personally or by counsel.
This section should be read in conjunction with sub-sec. (1)
and (2) of sec. 651 of the Code which grant the rights (1) to an opening
statement that can be made by the accused himself, (2) to examine the witnesses
«as he thinks fit» and (3) to sum up the evidence. Sub-sec. 651(1) and (2)
read as follows:
651. (1) [Summing up by prosecutor]
Where an accused, or any one of several accused being tried together, is
defended by counsel, the counsel shall, at the end of the case for the
prosecution, declare whether or not he intends to adduce evidence on behalf of
the accused for whom he appears and if he does not announce his intention to
adduce evidence, the prosecutor may address the jury by way of summing up.
(2) [Summing up
by accused] Counsel for the accused or the accused, where he is not
defended by counsel, is entitled, if he thinks fit, to open the case for the
defence, and after the conclusion of that opening to examine such witnesses as
he thinks fit, and when all the evidence is concluded to sum up the evidence.
It is useful here to relate these rights to the
constitutional rights enunciated in sub-sec. 11 d) of the Canadian Charter
of Rights and Freedoms in the following terms:
11. Any person charged with an offence has the
right
[...]
(d) to be presumed
innocent until proven guilty according to law in a fair and public hearing by
an independent and impartial tribunal.
as
well as sec. 7 of the Charter, which reads:
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in accordance with the
principles of fundamental justice.
Thus, the right which the appellant
claims was violated when the trial judge put an end to his defence derives from
sub-sec. 650 (3), which gives the accused the right to personally make full
answer and defence and from sub-sec. 651 (2) which expressly provides that the
unrepresented accused may, at the end of the case for the prosecution, examine
the witnesses he wishes to be heard in his defence, including, obviously,
himself.
Although, when we read Sections 650 and 651 together, power
is specifically given to the court to order the expulsion of the accused from
the courtroom in the case of misconduct, neither of those sections contemplate
the possibility that the court may, in the case of misconduct or for any other
reason, except for reasons which would justify the expulsion of the accused,
put an end to his defence or not allow him to do the summing up. Does that mean,
however, that the right is infinite and that the court cannot, in appropriate
cases, restrict this right or even terminate it? In other words, can an
accused, by his conduct, lose such fundamental rights? That is the issue in
the case at bar.
In Canada, apart from authorities which discuss the rationale
behind sec. 650 and the situations in which an order of expulsion can be
justified, very few are of much assistance to the present case, mainly because
in those cases the accused expelled was represented by counsel at each stage of
the trial and, therefore, the issue was restricted to the merit of the order of
expulsion. As will be discussed below, the fact that an accused is not
assisted by counsel creates an additional difficulty for the trial judge who is
confronted with an accused who disrupts the course of the trial.
In R. v. Paul Rose (1973), 12 C.C.C. (2d) 273
(C.A.Qué.), reference is made to the fact that the accused, who was
unrepresented at the trial, was expelled from the courtroom on account of «the
misconduct, the annoyance, the open defiance of authority and the insults of
the accused». The trial continued in his absence but no other details are
given as to the manner in which the trial was conducted, nor how the trial
proceeded at the stage of the defence and of the summing up.
In R. v. Pawlin (1985), 23 C.C.C. (3d) 14,
Murray J. of the British Columbia Supreme Court had to deal with an accused who
was unrepresented at his jury trial on a charge of trafficking in heroin. The
judge removed the accused from the courtroom for one day because of his
conduct, and then ordered his removal, this time for the duration of the
Crown's case, after having concluded «that the accused deliberately embarked on
a course of conduct calculated to delay and to obstruct the course of this
trial indefinitely», and after having told the accused that «he was in effect
by his conduct holding the members of the jury as hostages» (p. 17). Following
that decision, the accused wrote to Murray J. stating that he did not wish him
to cross-examine Crown witnesses but despite that, Murray J. undertook to
cross-examine the majority of the Crown witnesses. In his reasons, Murray J.
described as follows the incidents which prompted his decision to remove the
accused during the rest of the Crown's case:
1. He
continually made long statements to the jury about matters which are absolutely
irrelevant to the case. An example of this type of statement was his constant
reference to his conviction for first degree murder and the fact that he was in
bed asleep when the murder was committed.
2. He
continually asked repetitious questions of witnesses. On some occasions he
would ask the same witness the same question four or five times despite
repeated warnings.
3. He
persisted in asking witness after witness improper questions. One example of
this type of question was his persistence in asking nearly all police officers
if he was suspected of having committed 30 murders.
4. Time
after time he asked witnesses to testify to hearsay after I had explained to
him in simple terms the nature of hearsay evidence. On many of these occasions
instead of abiding by my ruling he would immediately ask the same question
again.
5. He
would deliberately pause for very long intervals between questions. The delays
often amounted to four or five minutes.
6. On
occasions too numerous to mention he displayed a calculated refusal to abide by
any directions I gave as to the admissibility of evidence or otherwise.
7. He
made spurious motions at every available opportunity. These were usually
motions to quash the indictment on frivolous grounds.
8. He
refused to abide by my rulings on other motions and requests made by him. One
example of this was his request for the issue of a subpoena directed to one
Judy Rusu??, a witness who had testified against him as a Crown witness at his
murder trial and who has now been given a new identity and is out of Canada.
When I ruled that I would not compel her attendance he refused to recognize the
ruling and renewed his request on an almost daily basis interspersed with
complaints to the jury. He similarly requested that subpoenas be issued for
Dennis Van Dooren and Conrad Gunn. Van Dooren is the husband of Diana Van
Dooren for whose murder the accused was convicted and Gunn is a convicted drug
trafficker who, the evidence adduced by the accused showed, had a contract out
to kill the accused and vice versa. I was convinced that these requests
were not made genuinely but were made for obviously ulterior purposes. The
accused again refused to accept my ruling on these latter matters.
9. Finally,
the accused commenced to verbally abuse witnesses. An example of this occurred
on October 16th when he addressed a police officer who was giving evidence by
using words to the following effect: «Officer, I used to think you were a
gentleman -now I think you are a jerk.»
This decision was upheld by the Court of Appeal.
It is in a decision rendered in England in 1987 by the Court
of Appeal
that I was able to find the most helpful statement of the principles applicable
in a case such as ours.
Morley was charged with burglary. At his trial, he had
appeared in person, having dispensed with the aid of counsel. The case for the
prosecution was not very complicated and it was estimated that the
evidence-in-chief given by the witnesses lasted little more than an hour.
However, the trial extended over 38 days, during which the trial judge, in
order to impose some limitation on the length of the trial, felt compelled to
refuse the accused's request for certain witness summonses, and to order
him to be removed from the court from time to time, which included the
accused's removal just prior to the commencement of the summing up. This
deprived the accused of the opportunity to address the jury. The accused was
convicted, and he appealed on the ground of improper denial of witness
summonses in respect of defence witnesses, wrongful determination of the
defence case, and refusal by the judge to permit a closing speech.
When this case came before the Court of Appeal, the court
noted «a surprising absence of any previous guidance by the Courts».
As in Canada, an accused in England is entitled under some
statutory provisions to call witnesses and address the jury: See sec. 2 of the
Criminal Procedure Act 1865, 28 and 29 Vict., c. 18. Lord Justice Woolf, who
wrote the opinion of the court, stated first that these rights must be
construed «in the context of the obligation upon the judge to ensure
the proper conduct of the trial as a whole», the judge having a duty «to
avoid the prolongation of a trial and to avoid the incurring of unnecessary
expense».
In that perspective Woolf L.J. then defined the limits on the
rights in question, in an extract which I consider very persuasive for the
present appeal (pp. 221, 222):
Section 2 of the
1865 Act cannot be regarded as giving a licence to a defendant to behave as he
likes and to say what he wishes, irrespective of the effect of that upon the proper
conduct of the trial. The right cannot be used in order to frustrate the
trial and is conditional upon the defendant using that right for the purpose
for which it was given, which is to advance and not to defeat the course of
justice and for the proper conduct of the trial.
The position is the
same in relation to witnesses. A defendant is entitled to call any witness who
can give relevant and admissible evidence which the defendant considers can
reasonably assist his defence. In relation to such witnesses it is not for the
court but for the defendant to decide which witnesses should be called.
However, section 2 cannot be interpreted as giving the defendant an unlimited
licence to call witnesses irrespective of whether or not they would assist his defence.
(my emphasis)
As to the remedy which is vested in the court's jurisdiction
and which can go as far as deprive an accused of some of his rights, Lord Woolf
took the precaution to state:
While, therefore,
the court has a reserved power to avoid its process being abused by a
defendant, it is to be emphasized that this power, particularly in relation to
the closing address, is to be exercised exceedingly sparingly and only in an
obvious case and so far as a closing address is concerned, where there is
really no alternative.
(my emphasis)
In applying these principles, the Court of Appeal examined
the circumstances up to the crucial time when the order was made to remove the
accused from the court, and held that the trial judge had had no alternative
but to act as he had done. The Court noted that the trial judge had «exercised
considerable patience and whenever possible resisted being provoked by the
appellant», and concluded that this was «one of the exceptional cases» which
justified the order.
The soundness of the principles above enunciated in the Morley
case can hardly be disputed; they are in harmony with our tradition and values
as reflected in the Criminal Code as well as in the Canadian Charter of
Rights. Lamer J. (as he then was), writing in Korponay v. Attorney
General of Canada, [1982] 1 S.C.R. 41, p. 48, in the context of a
discussion on the right to waive a procedural requirement, described the
Canadian approach in the following words:
Paramount to such a
right is that of the trial judge to require compliance notwithstanding a desire
to waive, he being the ultimate judge of what procedural safeguards need
nevertheless be respected in order to protect the certainty and the integrity
of the judicial process.
By analogy it is of some interest to examine the course of
prudence which our courts in Canada have adopted in dealing with situations
where the misconduct of the accused results in his expulsion from the
courtroom.
Our former colleague Nichols J., in Marceau v. R.,
[1990] R.J.Q. 33
, with the approval of his two other colleagues, stated that
the discretion given to the court by sec. 650 to expel the accused must be exercised
«à l'enseigne de la retenue et de la stricte nécessité» (with reserve and out
of strict necessity). Discussing the difficult predicament of the judge who
has, on the one hand, the obligation to assure the accused's presence at his
trial, and, on the other hand, that of preserving the dignity of the court to
the point of having to remove a person who acts irresponsibly, Nichols J.
concluded that the decision to remove the accused was wrong in that instance;
as he said, the decision required on the part of the trial judge that he avoid
acting out of «agacement ou impulsion» (irritation or impulsion) or «en
fonction de son propre tempérament» (as a function of his own temperament). In
summarizing, he said:
L'ensemble du
dossier ne permet pas de présumer que l'accusé aurait eu, pendant les
plaidoiries et l'adresse du juge, un comportement incorrect au point de faire
craindre que tout le procès puisse devenir une moquerie ou une parodie de la
justice.
The appeal was allowed and the conviction was quashed.
Similarly in R. v. Grimba (1981), 56 C.C.C.
(2d) 570, the Ontario Court of Appeal ruled that it would take more than a
single offensive and disruptive act to justify the exclusion of an accused from
the courtroom (p. 573):
In my respectful
view, neither does the second exclusion find a foundation in s. 577(a).
Conceding that the action of the appellant was offensive and disruptive, it was
a single act which could have been dealt with by an admonition or by causing
the appellant to take a position further from the Bench. There is nothing in
the transcript nor in the report of the trial Judge which suggests that the
continuation of the proceedings in the presence of the appellant was not
feasible.
I intend now to proceed to a review of the American
jurisprudence discussing these issues. The United States Supreme Court
affirmed in Illinois v. Allen (1969), 397 U.S. 337 that the right
given to an accused to attend his trial in virtue of the Sixth Amendment of the
Constitution is not absolute and that an accused can lose this right. The
Court set out the rule, which is almost identical to sec. 650 (2)a) of our
Code, as follows:
Although mindful
that courts must indulge every reasonable presumption against the loss of constitutional
rights, Johnson v. Zerbst, 304, U.S. 458, 464 (1938), we explicitly hold
today that a defendant can lose his right to be present at trial if, after
he has been warned by the judge that he will be removed if he continues his
disruptive behaviour, he nevertheless insists on conducting himself in a
manner so disorderly, disruptive, and disrespectful of the court that his trial
cannot be carried on with him in the courtroom.
(p. 343)
(my emphasis)
As to the discretion given to trial judges confronted with
such situations and the permissible solutions to deal with them, the Court
added the following:
We believe trial
judges confronted with disruptive, contumacious, stubbornly defiant defendants
must be given sufficient discretion to meet the circumstances of each case. No
one formula for maintaining the appropriate courtroom atmosphere will be best
in all situations. We think there are at least three constitutionally
permissible ways for a trial judge to handle an obstreperous defendant like
Allen: (1) bind and gag him, thereby keeping him present: (2) cite him for
contempt; (3) take him out of the courtroom until he promises to conduct
himself properly.
(p. 344)
The governing principle which underlies the legitimacy of an
order of exclusion was enunciated by the United States Supreme Court in 1899,
in Falk v. United States,15 App. D.C. 446 (1899), as quoted by
Justice Brennan in Illinois c. Allen, supra:
The question is one
of broad public policy, whether an accused person, placed upon trial for crime
and protected by all the safeguards with which the humanity of our present
criminal law sedulously surrounds him, can with impunity defy the processes of
the law, paralyse the proceedings of courts and juries and turn them into a
solemn farce, and ultimately compel society, for his own safety, to restrict
the operation of the principle of personal liberty. Neither in criminal nor
in civil cases will the law allow a person to take advantage of his own wrong.
(pages 349, 350)
(my emphasis)
In my study of the issue in the American jurisprudence, I
found particularly interesting, for the purposes of the case at bar, the
decisions dealing with the situation of the disruptive or contumacious accused
who is not represented by counsel.
In Faretta v. California 422 U.S. 806 (1975),
the United States Supreme Court affirmed that a defendant in a state criminal
trial has a constitutional right to proceed without counsel in his trial when
he voluntarily and intelligently elects to do so, but that this right is not «a
licence to abuse the dignity of the courtroom», although «he may conduct his
own defence ultimately to his own detriment...».
I pause here to recall that, in Canada, an accused, as
previously noted under sec. 651 of the Criminal Code, has the right to
represent himself.
In United States v. Dujanovic, 486 F. (2d) 182
(1973), a decision of the Court of Appeals, Ninth Circuit, the court observed
that «one of the penalties of the appellant's self-representation is that he is
bound by his own acts and conduct and held to his record».
The same objectionable conduct by an accused who is
unrepresented can result in the loss of such fundamental rights, namely, his
right to be present and to represent himself: «both rights may be curtailed on
behalf of the same institutional interest and, as a factual matter, both rights
are usually lost by the same or succeeding acts». (Badger v. Cardwell,
587 F.2d 968 (1978), (Ninth Circuit).
Needless to say, in the examination of the decision to remove
an accused from the court or to put an end to one of his fundamental rights, as
in the present instance, a Court of Appeal, as properly stated the U.S. Court
of Appeals, Ninth Circuit, in Badger v. Cardwell, has to be
mindful that it is engaged, to some extent, in «second-guessing» the trial
judge's decision: «deference would be owed in any event to the decision of the
judge in whose hands the actual responsibility for courtroom conduct is placed»
(p. 973).
As in Canada, the American courts have taken the position
that any limitation on such fundamental rights as the right to be present, to
present his case and to be heard can happen only after a trial court has looked
«for corrective measures that do least injury to these rights consistent with
the preservation of an orderly court atmosphere» (Badger v. Cardwell,
supra).
To conclude on this study of the principles in issue, I find
that where, in exceptional cases, despite efforts by a trial judge to avoid the
inevitable, an accused still persists in his disruptive conduct and therefore,
abuses his rights, he can lose these rights. In such a case the trial judge in
the exercise of his discretion, can take the appropriate measures to ensure the
proper march of the trial, which can include the continuing of the trial in
absence of the accused, or the premature termination of the latter's defence,
which may mean, as in the present case, that the accused would not testify in
his own case. Such an exceptional decision has to be examined in its context;
therefore, I shall now consider the saga of events which resulted in the
judge's decision in this case.
The trial judge's decision and its contextual background
It is important to note that, at the outset of the trial, the
appellant had made it clear that he did not wish to be represented by counsel,
despite many attempts by the trial judge to provide him with every reasonable
assistance to obtain counsel. Considering the importance of the case, the
trial judge appointed Me Louis Belleau as «amicus curiae» before the trial
started and Me Belleau acted in this capacity all through the trial up to July
30, 1993, almost the end, when he was granted permission to be substituted by
his associate.
The trial started on March 8, 1993, and the Crown ended its
case on May 17th. On May 20th, the appellant started his defence and examined
seventy-seven witnesses up to July 29th, during which time many incidents,
which I will examine below, culminated in the following last warning by the
trial judge, mixed with insults on the part of the appellant, in the course of
the examination by the appellant of Dr. Swamy (R.Factum, pages 526, 527, 528,
529):
BY THE COURT:
We are not going to
go through any more of that. This is marginally pertinent, if pertinent at
all.. Continue.
BY THE ACCUSED:
This is the most
important meeting. They were...
BY THE COURT:
You have until this
afternoon to finish with this witness. I suggest you get on with it.
BY THE ACCUSED:
Well, about...
BY THE COURT:
You have been four
days...
BY THE ACCUSED:
About the afternoon,
I have another jurisprudence here which says... if I can read it to you. If
you... and it says:
There is no way a
judge can put a limit as long as there are pertinent questions to
interrogation.»
BY THE COURT:
As long as there are
pertinent questions.
BY THE ACCUSED:
All right.
BY THE COURT:
And I'm not certain
there are pertinent questions.
BY THE ACCUSED:
Well, as soon as
they are not pertinent, then you do it.
BY THE COURT:
And I am satisfied
that you are not moving with the dispatch with which you can move, and that is
that, and it's been the same with every witness. You have till this
afternoon. You have known that Mr. Swamy is leaving. You have known that Mr.
Swamy is not available tomorrow, and you have known that for two weeks.
BY THE ACCUSED:
I advised you on
several occasions that he responds much longer than necessary, and he doesn't
respond to questions. I would have finished a long time ago...
BY THE COURT:
If you are... if you
have questions to put to him, I'd suggest you get on with it.
BY THE ACCUSED:
I have questions,
but I suggest that you stop abusing the law. You ignore all the jurisprudence
which I quote to you. You are above the law, and this is no good.
BY THE COURT:
Sit down. This
interrogation is ended.
BY THE ACCUSED:
No.
BY THE COURT:
Mr. Lecours, you
have any questions to put to Mr. Swamy?
BY THE ACCUSED:
I have questions.
BY THE CROWN:
I have no
questions. My Lord.
BY THE COURT:
Fine. You're
excused, Dr. Swamy.
BY THE ACCUSED:
Well...
AND FURTHER DEPONENT
SAITH NOT
BY THE COURT:
Call your next
witness.
BY THE ACCUSED:
Whatever I do, you
cannot excuse the witness.
BY THE COURT:
Call your next
witness. You were warned yesterday and you've been warned today, and you
continue arguing, and you refuse to put your questions. That's it.
BY THE ACCUSED:
You behave like a
little low crook.
BY THE COURT:
Call your next
witness... Pardon?
BY THE ACCUSED:
Little low crook.
BY THE COURT:
Take him out.
We'll adjourn for
fifteen (15) minutes.
(THE JUDGE LEAVES
THE BENCH)
(MEMBERS OF THE JURY
LEAVE THE BENCH)
SHORT RECESS
OUT OF THE
PRESENCE OF THE JURY
(THE JUDGE TAKES THE
BENCH)
(THE CROWN, Me
BELLEAU AND THE ACCUSED ARE PRESENT):
BY THE COURT:
Might I hear,
please, the tape of the last few minutes before we adjourned.
BY THE ACCUSED:
Well, I can repeat
it myself, if you want it.
(THE TAPE IS PLAYED
IN THE COURTROOM)
Can you show any
reason why you should not be held in contempt for that last statement?
BY THE ACCUSED:
Contempt of who?
BY THE COURT:
Contempt of Court.
BY THE ACCUSED:
You are not Court.
BY THE COURT:
Thank you. Sit
down.
BY THE ACCUSED:
May I finish my
explanation?
(my emphasis)
During this same sequence of events, the trial judge
expressed openly the predicament with which he had been confronted since the
beginning, namely, the difficulty of dealing with an accused whose conduct
justifies his exclusion from the courtroom but who represents himself (R.
Factum, pages 531, 532, 533):
BY THE COURT:
Sit down.
Throughout this
trial you have elected to defend yourself. That, of course, is your right.
That makes it incumbent upon me, unfortunately, to have a number of exchanges
with you, which I would not ordinarily have. Human nature being what it is, a
number of these exchanges have, of course, been heated, and that in itself is
probably to be expected. I, however, in dealing with you, have always
respected the limits of basic politeness. I have thrown no insults at you.
When you call me a little low crook, you express contempt not only for me, but
for the whole system which, whether you like it or not, in this country we
happen to be proud of.
BY THE ACCUSED:
(Laughter) I'm
sorry.
BY THE COURT:
It may be that you
sit there, or stand there and thumb your nose at contempt citations. And when
you do, of course, the weakness of the system is that you're able to do it with
impunity. The strength of the system is that it progresses. Your trial goes
on, and at the end, whatever it is, you will be tried and the jury will decide
what the jury has to decide.
So along with the
weakness of the system is its strength itself, because its strength is rooted
in the fact that most of us in this country have some faith in it. It may not
be perfect, but by and large it works pretty well.
That is why when you
call me a little low crook, not only am I not personally obliged to accept that
sort of behaviour on your part. I'm obliged to use the authority which I have
to punish that. Whether you feel that the punishment affects you one way, or
the other, or not is, in a sense, besides the point. The point is that nobody
is obliged to put up with that sort of thing in a Court of law, and the message
has to be made very clear that this sort of thing will not be tolerated.
You may laugh at
sentences of imprisonment for contempt, but when a situation commands that they
be imposed, they will be imposed. And if it makes the system look wear and
impotent, then that is a misconception of the system in this country, which is
rooted in basic freedoms, one of which you have been exercising since the
beginning of this trial, and that is to defend yourself.
Your behaviour this
morning since the beginning has basically merited that you be removed from the
courtroom. But then, of course, as I've said before, the problem which arises
is how do you defend yourself if you're removed from the courtroom. The answer
is obvious.
So we'll go on. We
will go on. If necessary time limits will be imposed depending on the
situation and this case will move ahead. As things stand at the moment, I find
you guilty of contempt of Court. I told you that in the ten years that I've
been here, I never had occasion to pronounce one judgment in contempt of Court
against anyone until this trial began. Thus far I don't know whether I'm at
four or five with another series waiting in the wings. That disappoints me,
but it is unfortunate.
I find you guilty of
contempt of Court and for that last contempt I sentence you to six months
imprisonment to be served consecutively to the sentences which you already
served. I can tell you that if an incident such as this morning repeats
itself, the same approach will be adopted, and your trial will continue. And
we will get to the end, whether you like it or not, with you, or in spite of
you.
The trial resumed and witnesses were heard. On the same day,
July 29th, during the examination of Eleanor Morris by the appellant, the
latter proferred further insults to the trial judge. Other witnesses were
heard; a discussion then ensued regarding a potential witness. The appellant
was finally refused an adjournment to call that witness. The appellant moved
to call the Crown Attorney as a witness but, in the absence of any ground to
support that request, the trial judge dismissed it. The jury was asked to
leave the courtroom, and the trial judge felt at this point that the matter had
to come to an end and intimated to the appellant that if he wished to testify
he should do so then (R.F. pages 557, 558, 559):
(MEMBERS OF THE
JURY LEAVE THE COURTROOM)
(OUT OF THE
PRESENCE OF THE JURY)
BY THE COURT:
Well, you would
appear to have one option. You have said before, and I don't wish to say it in
front of the jury, that you propose to testify. I suppose you could start.
That would take you from now until four-thirty (16:30).
BY THE ACCUSED:
You must be
kidding?
BY THE COURT:
Not at all. I'm
deadly serious, Mr. Fabrikant.
BY THE ACCUSED:
I am more than
not prepared to testify yet. I have still many, many witnesses to be heard.
So there is no way I'm going to testify. I would like Mr. Lecours to testify
or... frankly speaking, I don't want him to be removed because I think he is...
BY THE COURT:
Mr. Lecours is
not going to testify unless you convince me that you require Mr. Lecours to
testify...
BY THE ACCUSED:
All right.
BY THE COURT:
... and that will
take some convincing.
BY THE ACCUSED:
I do not want him to
be removed. I didn't think that his testifying would remove him. You see, I
am still ignorant at law. So I think he is one of the best I could possibly
have. I hope you understand what I mean. So definitely I don't want him to be
removed.
BY THE COURT:
All right, I'll cut
you short.
BY THE ACCUSED:
Well, I haven't
finished yet. Let me explain why I need him.
BY THE COURT:
I have finished
listening to you. I will tell you this. You will be prepared as of tomorrow
morning to proceed.
BY THE ACCUSED:
Yes.
BY THE COURT:
If you are not
prepared to proceed tomorrow morning for whatever reason... for whatever
reason, you risk your defence being declared closed. We will go on
tomorrow, and then we will go on the following week, and we will go on witness
after witness until we are finished.
BY THE ACCUSED:
That's a good idea.
BY THE COURT:
This is the last
adjournment that you will get at your particular request.
BY THE ACCUSED:
It is not at my
particular request. It is at your lawlessness.
BY THE COURT:
And that is it.
Take him out. Tomorrow morning, nine-thirty (9:30).
ADJOURNMENT
(my emphasis)
The next day, after having disposed of Me Belleau's request
to cease to act as «amicus curiae» and to be replaced by Me Boutros, the trial
judge recalled the jury. The appellant's first words were: «Well, ladies and
gentlemen, welcome to the Muppett show», followed by more insults.
After a long confrontation between the accused and the trial
judge, the appellant was found guilty once again of contempt of court. The
trial judge then gave the following explanation to the jury (R.F. pages 569,
570, 571, 572):
BY THE COURT:
What provoked all of
this, ladies and gentlemen, was the fact that in view of the length of the
trial which from March is now stretching to five months, with some time to go,
perhaps, that Mr. Belleau has found it impossible to continue in his capacity
as the Friend of the Court.
When he accepted
that position it was on the belief that, or on the thought the trial would take
three to four months, as the outset. His reasons, from my point-of-view, I
deem serious, because a lawyer's practice, and in this instance his practice
has effectively been put on hold during the time of the trial, and you all know
the feeling of this because your lives have been put on hold, too.
The consequences for
him will be relatively far reaching unless he's able to re-establish his
practice when the term opens in September. And he asked me whether it would be
possible in these circumstances for me to consider his replacement as a Friend
of the Court. And I said I would certainly be prepared to give some
consideration to it, on the understanding that the task could be taken over by
a member of the Bar, who had some experience in criminal matters and who would
have the time available to see the thing through to the end. He suggested to
me the attorney who is at his left, Me Gabriel Boutros, who has the advantage
of being Mr. Belleau's partner, or one of Mr. Belleau's partners, and who
because of that relationship is familiar to some degree with, not just what's
transpired here, but with the manner in which Mr. Belleau has been exercising
the functions of amicus curiae, so that that continuity which I feel is
important, would that way be preserved. He will, of course, have access to Mr.
Belleau if he has any questions with regard to what has transpired so far. So
in these circumstances I agreed to permit Mr. Belleau to withdraw. I agreed
with some considerable hesitation because he's been of great assistance to me
throughout this matter, and...
BY THE ACCUSED:
And to the Crown.
BY THE COURT:
... I expressed
thanks to him before you came in, and I do so again. And he'll be with Mr.
Boutros throughout the day and then as of Monday Mr. Boutros will assume the functions
of Friend of the Court. And to this end he has discussed at length with Mr.
Belleau how the task has evolved in the context of this trial. So that is what
I gather prompted the comment when you came in this morning.
Call your next
witness.
BY THE ACCUSED:
Well, it's not
exactly this that prompted... it was just...
BY THE COURT:
Would you call your
next witness.
BY THE ACCUSED:
Otherwise what, you
will release the witness?
BY THE COURT:
Otherwise I will
release the witness.
BY THE ACCUSED:
You have no right to
do that. The witness is here.
(my emphasis)
The appellant then proceeded to examine the witness Nicholson
who was followed by the witness Karpman. After a long examination of the
latter, a debate arose as to the relevance of some of the questions and
resulted in the following incident which becomes crucial in the present case
(R.F. pages 615, 616):
BY THE COURT:
I'm not going to
argue with you any more. I've ruled. That line of questioning is out of
order.
BY THE ACCUSED:
Well, you know very
well this is not my witness. And if I disclose what I am aiming at, the
witness would know and definitely he will adjust his answer.
BY THE COURT:
That question and
line of questioning is out of order. It's not pertinent. Last time. Now, if
you persist in arguing, I'll end the interrogation of this witness.
BY THE ACCUSED:
Well, to this point
I would like to tell you, do not scare me. I couldn't care less. If you want
to do another illegal thing, do it. All right. And never again try to scare
me.
BY THE COURT:
Mr. Karpman, thank
you very much. If the Crown has no questions you're excused.
BY THE CROWN:
I have no questions,
My Lord.
AND FURTHER DEPONENT
SAITH NOT
-----------
BY THE COURT:
Next witness.
BY THE ACCUSED:
Well, I think It's
about time to repeat again, you are little low crook.
BY THE COURT:
Okay. That's
it. You are out of order. Remove him from the courtroom. I will decide
between now and twelve o'clock (12:00) what my next step is going to be. But
it is obviously impossible to proceed with this trial in the manner in which
you're behaving yourself. Your behaviour has become totally disruptive. Out,
now. We'll adjourn till twelve o'clock (12:00), ladies and gentlemen.
(THE JUDGE LEAVES
THE BENCH)
(MEMBERS OF THE JURY
LEAVE THE COURTROOM)
SHORT RECESS
(my emphasis)
In the absence of the jury but in the presence of the
appellant, the trial judge, who had just ruled that the whole trial had to come
to an end, invited the Crown attorney to make representations. The latter's
answer was the following (R.F. pages 616, 617):
(OUT OF THE PRESENCE
OF THE JURY)
(THE JUDGE TAKES THE
BENCH)
(THE ATTORNEYS AND
ACCUSED ARE PRESENT)
BY THE COURT:
Mr. Lecours, before
I take the decision that I have to take, I wonder whether the Crown has
anything to say, and the decision obviously that I'm contemplating is the
closing of the Defence. I wonder what the Crown's position on that is.
BY THE CROWN:
I agree with that,
My Lord. I think the situation has become intolerable.
BY THE COURT:
Thank you. The
jury, please.
(my emphasis)
Immediately after, the trial judge recalled the jury and
informed them that he had decided that «the time has come to terminate the
defence...» and to ask the Crown attorney if he wished to call rebuttal
evidence (R.F. pages 617, 618, 619):
BY THE COURT:
Ladies and
gentlemen, in view of the situation in which we find ourselves I have decided
that the time has come to terminate the Defense which... or the evidence in
Defense which is being called by Mr. Fabrikant. I think that I owe you an
explanation as to why I've come to that decision, and the explanation will be
brief.
We hear in this
country over and over again the word «rights». In particular, in relation to
the Criminal Law, we hear the right to a full answer in defense. And in the
context of the word «rights», we hear invoked again and again the question of
the Charter of Rights, whether it be the Federal Charter or whether it be the
Quebec Charter.
The concept of a
full answer in defense wasn't created by the Charter and isn't new. It's
something which has been part of our criminal law for a long, long time. I say
a right to a full answer in defense. Yes, it's a right, but it carries with it
a concomitant duty, and that is a duty to exercise that right within the rules
which apply to the running of criminal case.
And as I explained
to you in the beginning in the running of a criminal case, the judge has, among
other things, the power to decide both as to the admissibility of evidence, as
to the pertinence of evidence, and as to the manner in which that evidence is
to be adduced.
The parties have the
duty to respect the judge's rulings because, as I said to you before, if the
judge errs along the way, that is why there is an appeal procedure which is in
place in order to undo any injustice which might result.
Systematically it
has become more and more difficult to see these basic rules respected. The
right to a full answer in defense is not unlimited. One cannot simply throw
oneself before the high alter of the Charter of Rights and expect by invoking
it to be able to behave as one wishes, casting aside all of the rules which
apply to the orderly running of a Canadian court. And unless proceedings can
devolve in a calm atmosphere, then obviously the rules are being abused somewhere.
This morning is but
the culminating point, and in the light of what transpired this morning,
virtually all of which transpired with you present, I've decided that this
trial cannot usefully proceed any further, and that the time has come simply to
put an end to the Defense evidence.
There isn't such
precedent for this in our Criminal Law, but then there's not much precedent for
a lot of what we have met along the way in connection with this trial.
And the bottom line
is that it stands now to be decided on the basis of the record as it exists
now. What I propose to do is move to the next stage, which is to ask the Crown
Prosecutor if he has any rebuttal evidence to present. I don't know what the
answer is.
BY THE CROWN:
I have no rebuttal
evidence.
The last extract constitutes the basis of the trial judge's
decision.
The defence being declared closed and no rebuttal being
called by the Crown, the appellant agreed to proceed with his summation to the
jury, which lasted a few days, followed by the Crown attorney and the trial
judge who gave his address on August 9th and 10th. The jury returned with a
verdict of guilty on August 11th.
After this review of the incidents which led to the decision
impeached in this case which terminated the appellant's defence, I shall now
point out some previous incidents which occurred during the appellant's
presentation of his defence, in order to show the appellant's conduct in a
broader perspective, to better illustrate the nature of the trial judge's
predicament and to seek to show how things came to that culminating point.
Just before the appellant started with his witnesses the
trial judge, who realized that the appellant could need some assistance in
order to facilitate his task in the presentation of the evidence, told the
appellant that Me Belleau, the «amicus curiae», «will be available to counsel
you if you require his counsel», adding that «he is not your lawyer, he is
there to furnish you with any information which you might want». Incidentally,
the record shows that the appellant used the services of the «amicus curiae»;
but, in his case as well, the appellant did not spare him his insults.
In the early stages of his defense, in the course of the
examination of his witnesses, the appellant directed various insults to the
trial judge. For example, on May 25th, during the examination of John Relton,
when the appellant persisted in asking irrelevant questions and was warned that
he should not do so, he then replied in speaking of a «comedy play», of the
«biased judge» and made insulting comments. The next day, after the
examination of Marie-Andrée Robitaille, the appellant questioned the «honesty»
of the trial judge who had to put an end to the examination of this witness on
account of the appellant's irrelevant questions.
It is not exaggerated to say that, for each witness called by
the appellant, the trial judge had to intervene many times to disallow an
abundant number of irrelevant questions and to put an end to the examination.
As early as June 3rd the trial judge admonished the appellant with a clear
warning as to the consequences of his misconduct, stating that it could mean
the foreclosure of his defence (R.F. pages 222, 223, 224):
You have asked them,
you're not a lawyer, I have extended to you as such latitude as I can, but what
you have no right to do and what you persist in doing and why I intervened is
because you insist on cross-examining your own witness, which you may not do.
Save and except if that witness has been shown to my satisfaction to be
hostile.
Now, you argue
consistently after I have ruled. One of the rules of the game, one of the rules of Court is that I am
the person who has the right to decide whether a question is legal, whether the
evidence that it proposes to put in the record is pertinent, and whether the
question should be permitted. You're not required to like my rulings, you
are... you may even hold the view that they are wrong, but you are required to
respect them, you are required to respect them. What do you? Every time you
argue with me, since the beginning of this trial I have been insulted on a
daily basis, you have committed contempt of Court on a regular and ongoing
basis. And in the teeth of the fact that the Judge has the right to
control and direct the trial, what options do I have? Argument is
inadmissible, you persist in arguing. For the first time in almost ten years
here, you are the first person that I have ever had to cite for contempt. Now,
I do not care if that tells you something, but it certainly tells me
something. First time in ten years, never done it before, never had to.
I have on a daily
basis had to record incidents which ran from contemptuous, to insolent,
directed against me, and directed against the Court in which I am sitting,
directed against other witnesses, directed at the process in general. I will
not live with this sort of thing. I will not put up with it from you any
longer. You are conducting your own defense, that is the situation you are
in. You merited being removed from the courtroom yesterday afternoon, yet I am
left with a practical problem, how I do I run your trial with you removed from
the courtroom particularly at the stage of your defense, so there is no solace
for me there. There is no solace for me in gagging you, there is no solace for
me in finding you in contempt because you thumb your nose at all rulings that I
make. You joke about times and notes in the procès-verbal, you make it virtually
impossible.
Quite frankly, the
only remedy, if you are not going to live by the rules, and I thank you
very much for the lecture about my interrupting you, but it is out of place, if
you are not going to live by the rules is foreclosure.
I am conscious of
the fact that you say that you are entitled to a full and complete defense, but
I say that is conditional upon your respecting the rules of Court and
conforming to them. And if you do not it is the way it is going from now on.
(my
emphasis)
This warning of «foreclosure» pronounced by the judge as
early as June 3rd shows clearly that, though the trial judge felt the situation
was already intolerable at that time, he could not easily resign himself to carry
out his warning, and decided to use his power of foreclosure only as a last
resort.
Despite the previous warning of foreclosure, on June 17th,
the trial judge gave another warning to the appellant that his trial, on
account of his disruptive and contumacious conduct, could be put to an end
(R.F. pages 332, 333):
Since the
beginning of this trial, I've had nothing but argument, disrespect and rudeness
from you. It's coming to an end. If there is one more incident, one more
incident, this trial will end. You will go straight out through that door.
This trial will end. The jury will begin their instructions and that is that.
You will follow
the directions of this court, word for word closely. If you don't like what
they are, you can go and complain to the Court of Appeal but I'm not putting up
with the kind of treatment I've been subjected to by you for any longer.
Now you go
through that door now and go and think about this for fifteen minutes and when
that fifteen minutes is up, we will resume.
BY THE ACCUSED:
There is nothing
to think. You have...
SUSPENSION OF THE
HEARING
(my emphasis)
On June 22nd, the appellant acknowledged very clearly the
warning which he received from the trial judge (R.F. page 353):
VALERY FABRIKANT:
Well there was
nothing wrong in my question except that you didn't allow it.
LA COUR:
Well that's fine,
that's ... that's enough.
VALERY FABRIKANT:
That's enough for
you. This is why all lawyers want to handle my appeal. Alright.
LA COUR:
Well if they all
want to handle your appeal perhaps you should call them and have them come and
give you a hand with your case.
VALERY FABRIKANT:
Well frankly
speaking I'm seriously thinking about finishing this stuff and go to appeal
from tomorrow because I think I have more than enough.
LA COUR:
Wonderful then. Go
right ahead.
VALERY FABRIKANT:
I'm trying to speak
I think a good idea.
LA COUR:
Go right ahead.
VALERY FRABRIKANT:
Yes well you
threatened to shut up my defense why don't you do that and this is exactly
where are going to ...
(my emphasis)
On a few occasions, for example on July 19th, after the
appellant insisted on putting some questions to his witnesses despite the
ruling that those questions were «a waste of time», the judge ordered the
appellant to be removed from the courtroom, adjourned the trial for a short
period, and recalled the appellant for the continuation of the trial.
The trial judge warned the appellant each time he intended to
terminate the examination of one of appellant's witness on account of the
irrelevance of the questions.
It follows from this study of the record that the last
warning, on July 29th, was preceded by previous warnings in the previous two
months, all of which confirm the view that the appellant could not have been
taken by surprise when he was given that last warning.
As to the defence which was advanced by the appellant, let us
see on what it was based. From his opening statement on May 20th, I extract
the following elements which the appellant submitted to the jury (R.F. p. 508):
VALERY FABRIKANT:
Ladies and
gentlemen, members of jury, many of you think that since I have publicly
admitted, on several occasions, and you have heard it on the tape, that yes,
indeed, I was the one who killed four people, so probably you think that what
then to talk about, he's guilty and that's it. How many of you think so, would
you raise your hands?
P. 509 -
[...] So it is not
question of justification but it is question of giving you all the facts which
led to what happened, and it will be up to you to determine the degree of
criminal responsibility of mine to those actions. This is the main purpose of
this defense. We can say thousand times that we need stricter gun laws, that
we need this, we need that, it will not change anything because the main reason
for violence is injustice or perception of injustice. In some cases this
perception might be wrong, in some cases this perception is right, but in all
cases, or almost all cases, violence is result of perception of injustice, and
if we really want to curb violence, we have to address question of injustice.
Pages 513, 514 -
[...] And you will
see that what triggered shooting was neither of those, those facts were steps
which were leading to it, but I would never shoot anyone because I was not
promoted, or because my article has appeared with somebody else's name there.
Ever.
[...]
And again, you will
get the evidence that I didn't want to kill anyone, the only thing I wanted
was to scare them to leave me alone, this attempt was done terribly wrong,
and you will hear what happened there, and you will decide by yourselves about
the facts.
(my emphasis)
At an early stage of his defence, on May 26th, the appellant
had said that his «only intent» was to «threaten Hogben», Dr. Hogben being the
first victim, who had been shot three times, no evidence having shown firing at
close range (R.F. p. 183):
Mr. FABRIKANT:
No, no, no, you
didn't understand what I said. I said that I didn't plan to kill anyone, what
I'm saying, to take justice in my own hands, the only intent of mine was to
threaten Hogben sufficiently that he will convey to all other bandits that they
would let me alone. That's all. And, I want to show to the jury that there
was no other way of doing this.
THE COURT:
I am not going to
permit you to embark on any of this.
Mr. FABRIKANT:
Well, you want to
protect Concordia, what can I do.
THE COURT:
I have no desire to
protect anybody. If what you say is true ...
Mr. FABRIKANT:
I think that my
explanation is so clear and logical.
All through the presentation of his evidence, the appellant
argued that his questions were relevant to show provocation on the part of the
authorities which could explain why one «would become violent». On May 26th,
he tried to convince the Court of the relevancy of his questions in order to
show «that he was dealing with criminals and when you are dealing with
criminals, you have no choice but to take justice in your own hands», his
only intent being «to threaten Hogben sufficiently that he will convey to all
other bandits that they would let me alone».
In those instances where the appellant, in his defence,
focused exclusively on a theory that he was provoked to act as he did, that he
wanted to threaten Dr. Hogben or to scare the authorities so that they leave
him alone, the trial judge did not allow him to pursue that line of defence.
The trial judge summarized as follows the theory of the defence in his address
to the jury (R.F. pages 716, 717, 718):
The theory of the
defense generally is that
the Crown has failed to prove the essential elements of the offences, that the
Crown evidence is unreliable, and that the scene was tampered with. As to the
tampering of the scene, the Defense particularly refers to the movement of Hogben's
body, and underlines that it is palpably impossible, that given the movement of
the body, the letter which he purportedly was touching could possibly have
remained in his hand.
The accused further
takes the view that particularly in relation to Dr. Douglass, the scene was
tampered with inasmuch as blood was added to the doors in order to make the
scene look more gory. He takes the position that the police and Concordia
officials conspired in order to paint him in the worst possible light, and
points to Sangollo's news conference the following day as being evidence of the
fact that the police, with full knowledge of what had transpired, nevertheless
put it about that the whole affair had commenced in Ziogas' office, rather than
in that of the accused.
The accused's position is that he had no motive to plan
to murder anyone. Having before him an offer of three years termination, which
was a rather handsome golden handshake by any standards. He maintains that he
could not have planned and deliberated the whole affair, having initially
intended to be at a conference in Israel, and that he only returned the one
thousand dollars ($1,000) because his plans changed at the last minute.
He takes the
position that, no, the proof does not demonstrate the planning of any
deliberate murder. He takes the position that the Crown has not explained the
presence of the guns and ammunition in his office on August twenty-fourth
(24th), nor for that matter the presence of Hogben as part of a plan. There is,
he says, no evidence that he brought the guns.
He puts in question
Hébert's testimony with regard to the recovery of the ammunition on the
twenty-fourth (24th) of August, relying on Bujold who gave access to Hébert on
September the twenty-second (22nd).
He indicates that
his behaviour does not indicate an intention to kill. Why, he suggests, would
he leave a stock of ammunition in his office as he went on a shooting spree,
rather than carry it with him?
Relying on Morris'
testimony, with regard to the two minutes which elapsed between the shooting of
Hogben and Saber, he raises the question of why take two minutes to cross the
hall if he was embarking upon a planned shooting rampage.
He underlines that
the evidence showed that he walked slowly, calmly, as Chouri said, and that had
he been putting into operation a plan he would have walked quickly. It is not,
he says, the ordinary behaviour for someone who is going after pre-selected
targets.
He maintains that he
could not have attempted to hit Horwood, particularly having regard for the
location of the various bullets which struck various doors and walls in the
hall in question. He puts in question, again, the police interference with the
scene, having regard, in particular, for the bullet that penetrated half-way up
one of the door frames. «Lin's», I think. It might be someone else's, but
which the police dug out from underneath by removing a portion of the floor of
the skirting.
He says that in the
face of the falsification of evidence by the police it would be extremely
dangerous to base oneself on any of the evidence which he contends the police
invented in order to come to any conclusion about planning and deliberation.
At the hearing, the appellant qualified his defence as the «psychologically
battered person syndrome».
Earlier in his address the trial judge had specifically
directed the jury that the defence of provocation was not open to the appellant
in this case (R.F. p. 691):
Now, I would simply
make allusion to two other things. You have sat here for weeks and weeks and
listened to a plethora of evidence that was admitted on the basis of the facts
that one day it might have become pertinent to a defense called provocation.
I told you yesterday
and I repeat, that evidence cannot support a defense of provocation because
essential additional evidence was not made relating to provocation and
therefore it is not open either for me to instruct you on the question of
provocation or therefore for you even to get into it.
In the absence of
proof sufficient to justify provocation, or in the absence of proof of
insanity, let me tell you that loss of control or loss of one's temper is not
and never can be a valid excuse for murder.
Having set out the context in which the decision attacked was
taken and the principles applicable in the examination of this decision, I
shall now come to a discussion of the issue.
Discussion
Throughout the presentation of the appellant's defence, the
trial judge, to paraphrase Mr. Justice Black in Illinois v. Allen,
supra, was confronted with a disruptive, contumacious and stubbornly defiant
accused who had adopted a strategy of defiance and disruption of the trial, if
not self-destruction, for reasons of his own. Had the appellant acted that way
but been assisted by counsel, the matter could have been more easily resolved
by removing him from the courtroom. But, as the trial judge indicated more
than once, he felt, in his wisdom, that he had to endure, to the extent possible,
the contemptuous conduct of the appellant since he did not want to order the
expulsion of an unrepresented accused. As shown above, the trial judge first
gave several sharp warnings to the appellant that his defence would be
terminated or his rights foreclosed, and ordered him to be removed from the
courtroom while adjourning the trial for a few minutes in order to admonish the
appellant. On six occasions, the trial judge had to use the contempt of court
proceedings in view of the most abusive language of the appellant. In my study
of this case, I very often asked myself: what else could the trial judge have
done to maintain the integrity of the process and to try to dissuade the
appellant from pursuing his line of conduct which could lead to a chaos?
Though the trial judge had shown commendable patience since
his first severe warning on June 3rd, it was only on July 29th that he had to
finally inform the appellant that it was the end and that if ever he wished to
testify in his own defence, he should do so then. To say the least, as I said
before, the appellant had to expect that to happen: his reaction, namely, that
he was not ready to testify, still remains inexplicable since he had been
clearly advised. Be that as it may, it was only the next day, on July 30th,
after the appellant chose to call another witness and not to testify himself
yet, that he pursued his disruptive behavior and that his defence was declared
closed by the trial judge. I fail to see how the appellant can argue seriously
that he was taken by surprise, after the numerous warnings of foreclosure, the
temporary expulsions and the convictions for contempt of court. In these
circumstances, how can the appellant claim he was denied a right when he
refused to exercise that right in anything approaching a reasonable manner and
when he used every opportunity during his trial to discredit the court and the
trial process.
Moreover it seems to me essential to remember that what
culminated in the decision to end the defence did not result only from the
appellant's conduct but also from the obvious waste of time to which the judge
and the jurors were obliged to submit, from the first to the last of the
seventy-seven witnesses called by the appellant in his defence. In the case of
almost every witness the trial judge had to terminate the examination on the
ground of irrelevancy. Without suggesting that the trial judge should have
curtailed the defence sooner, with the benefit of hindsight in perusing the
evidence called in defence, I feel it would not have been wrong to do so, given
the irrelevancy of the evidence. This reinforces my opinion that, when the
trial judge gave his final warning to the appellant on July 29th and invited
him to put an end to his defence and come forward as a witness if he so wished,
the appellant was not caught off guard and knew very well what this meant. For
over two months, the appellant conducted the examination of all witnesses, was
told every day that many of his questions were irrelevant and, more
particularly, that his defence of threats or fear or provocation against the
four murder charges did not constitute a valid defence. He was also warned
many times what his abuse of the time of the Court could not be accepted. I
should add, at this point, that I am satisfied that this defence of threats or
fear or provocation, or the one of «psychologically battered person syndrome»,
not tantamount to insanity, which was advanced by the appellant at the hearing,
were not valid defences to the charges of murder and attempted murder.
Examined in that context, the decision to terminate the
appellant's defence was, in my opinion, inevitable. As in Morley,
supra, where the English Court of Appeal ruled that the refusal by the trial
judge of the accused's request for certain witness summonses and also to permit
the accused a closing speech before the jury, were justified because of the
conduct of the accused, I have come to the conclusion that this was an
«exceptional case» where the trial judge had no other choice: he took all
reasonable steps to assure that the trial was conducted fairly and properly.
The Court, as stated in the Morley case, supra, has the inherent power
to avoid its process being abused by an accused and to prevent an accused
perversely trying to examine witnesses whose evidence is manifestly unnecessary
and irrelevant.
The appellant's case bears no resemblance to the situation
described in United States v. Bentvena et al (1963), 319 F.
(2d), 916, a decision of the United States Court of Appeals, Second Circuit,
referred to us by the appellant in his memorandum. In that case, though the
Court stated that the right to testify «may be waived by conduct» of the one
who holds that right, to which I fully agree, it ruled that the facts of the
case did not warrant that conclusion. The Court concluded that the trial judge
could not invoke serious misconduct at an earlier stage of the trial on the
part of an accused to refuse him the right to testify in his own behalf.
The right of an accused to make full answer and defence
entitles the accused to adduce relevant evidence, to advance legal argument and
to address the Court. It carries with it no license to paralyse the trial
process by subjecting an endless stream of witnesses to interminable
examination on irrelevant matters.
In this regard, an unrepresented accused enjoys no particular
privilege. On purely formal matters, he, untrained in legal science, will
generally be permitted reasonable latitude in putting questions, in formulating
objections, and in arguing points of law. By renouncing to the assistance of
counsel, however, an accused gains no right to proceed by different fundamental
rules.
In this case, the appellant called seventy-seven witnesses and
was permitted to question each of them at length. He was invited repeatedly to
testify in his own defence if he wished to do so. Notwithstanding his
offensive comments and his systematically obstructive conduct, he was permitted
to make and argue submissions in law, and to address the jury at great length.
Appellant, in short, was hardly deprived of his right to make
full answer and defence. He simply declined as I mentioned earlier, to
exercise it in a reasonable manner, let alone in the manner provided by law.
To a certain extent I see it as a waiver by the appellant of his right to call
further witnesses or to testify himself, after having been warned that his
behaviour could lead to the foreclosure or loss of his rights. In conducting
himself as he did, the appellant has no one to blame but himself for the
foreclosure ordered by the trial judge. To permit the appellant to continue
would have made a mockery of the trial process.
When I think of how scrupulous courts are in their efforts to
maintain the integrity of the process and to assure fairness at trial, it is
difficult to understand why one would deprive himself of the fundamental
guaranties which are protected by our Constitution and choose instead to seek
to disrupt, abuse and discredit the very process that is there to protect his
rights. That is what the appellant did and, in so doing, he himself was the
sole cause of the trial judge's decision to terminate his right to call further
witnesses in defence.
For all those reasons, I would dismiss the appeal.
_____________________________
MICHEL PROULX, J.A.
COURT OF APPEAL
PROVINCE OF QUÉBEC
MONTRÉAL REGISTRY
No: 500‑10‑000287‑936
(500‑01‑017372‑928)
CORAM: THE HONOURABLE
BEAUREGARD
BAUDOUIN
PROULX, JJ.A.
VALERY I.
FABRIKANT,
APPELLANT - (accused)
v.
HER MAJESTY THE
QUEEN,
RESPONDENT - (prosecutrix)
OPINION
OF BAUDOUIN, J.A.
I agree entirely with the reasons given and the conclusion
reached by my brother Proulx, and wish only to add a brief comment of my own.
A criminal trial must, under any and all circumstances, not
only be, but also appear to be, fair and equitable. The evidentiary and
procedural mechanisms, safeguards and rules that have been developed by our
legal tradition over the years to attain this goal must be respected and
strictly enforced.
As Justice Frankfurter observed more than 50 years ago in McNabb
v. United States, 318 U.S. 332 (1943), at p. 347:
The history of liberty has largely been the history of
observance of procedural safeguards.
Indeed, no safeguard is more important to the integrity of a
criminal trial than the right of an accused to make full answer and defence.
Trial courts are therefore bound to exercise great restraint in making any
order that could have an impact on the right of defendants to remain present
throughout their trials, to call witnesses, to testify themselves, and, if they
are unrepresented, to address the court.
For the same reasons, appellate courts must scrutinize with
care every alleged violation of the right of an accused to make full answer and
defence.
Finally, as appears from the paucity of decided cases dealing
with the circumstances that concern us here, trial courts have fortunately been
required only on rare occasions to contend with a systematic abuse of the
rights I have mentioned. Nonetheless, when that does occur, a measured but
firm response is essential to safeguard our system of justice against any
attempt to subvert the rules that ensure its integrity.
The present case is a good example of how the rules devised
to protect the accused against arbitrariness and unfairness are abused and
turned against the system itself. In such cases, the presiding judge who is
not only the guardian of equity and justice, but also the protector and keeper
of the integrity of the criminal justice system as a whole has both the
unquestionable right and the clear duty to intervene to preclude a travesty or
a parody of justice.
The complete trust and confidence of the public in its system
of justice is a fundamental value of our democracy. If the very tools and
weapons that are given to the accused to ensure his full protection against
despotism and arbitrariness are manipulated and used against the system itself,
there is, because of the very frailty of the system, a clear danger that the
whole structure of criminal justice would become subject to ridicule and that
public confidence in it might thereby be eroded.
In my respectful view, the careful analysis of the record by
Justice Proulx demonstrates that the trial judge, despite appellant's
persistent provocation, conducted the proceedings with
remarkable
dignity and serenity. The appellant is alone responsible for his failure to
testify. He was not deprived by the judge of that fundamental right -- or any
other.
Accordingly, I too would dismiss the appeal.
JEAN-LOUIS
BAUDOUIN, J.A.
R.
v. Mackay (1980), 53 C.C.C. (3d) 366 (C.A. B.C.); R. v. Lessard
(1992), 74 C.C.C. (3d) 552 (C.A.Qué.).
June
23, 1989, B.C.C.A., 8 W.C.B. (2d) 9.
Morley
(1988), 87 Cr.App.R. 218.