Criminal defence lawyer and partner at Hicks Adams LLP Christopher Hicks has written a series of journal entries to take readers behind the scenes of something few people have exposure to: a trial for first-degree murder. In these journals, readers will experience the daily progress of a trial from the defence lawyer’s point of view, with the lawyer’s perspective on everything including witness testimony, judicial rulings and legal strategy.
Making this series especially unique is the fact that this is the first jury trial to go forward in Ontario after the start of the Covid-19 pandemic. With new safety protocols in place, everything is different from the placement of the jury, the lack of observers in the public gallery and even the freedom of movement for the lawyers.
In a nine-part series, Christopher Hicks will take readers through the highly unusual process of running a murder trial during a pandemic, providing rare insights and information as you follow along on the journey from start to finish. See part one of the series here.
Jury selection commenced yesterday afternoon after the trial judge made her opening remarks, cautioning the potential jurors against going online to discover more about the case. Jurors are instructed that they must reach their verdict on the evidence they hear and the exhibits they see, and not on any other information. The remainder of the judge’s comments covered the expected length of the trial, about 6 weeks, and inquiries about possible inconveniences that might lead to a juror’s unavailability.
The potential jurors enter the courtroom one by one and respond to the publicity question. After that response, the potential juror is directed by Bernadette the registrar:
“Juror, look upon the accused, accused, look upon the juror”.
This is the moment for the peremptory challenge. Robert McGregor is white, so I am not concerned about the racial composition of the jury, but I am looking for a diverse mix of younger and older, male and female. Most importantly, I am looking for a few jurors who have accomplished something in life through education, career or personal initiative. There has to be at least one juror with a spark of personality and obvious intelligence who can manipulate legal concepts and lead the rest of the jurors through the tangle of legal and factual issues that will confront them.
Juror #1 is an executive, #3 a registered nurse, #4 an accountant, #6 a librarian. Ideally, one of these people will emerge as the foreperson of the jury.
To get to this result, I burn 18 of my 22 peremptory challenges on potential jurors who don’t fit my plan for one reason or another. The prosecution uses about 6, which is the usual ratio between defence and prosecution.
I always say to clients, as I say to McGregor, “If someone is giving you a dirty look, a hostile look, let me know”. This usually occurs when the juror is asked by the registrar to look upon the accused. Sometimes the potential juror won’t even look at my client, and I exercise the peremptory challenge without hesitation.
At the end of the second day, jury selection is complete. All are masked and sit, distanced from one another, throughout the courtroom. We are ready to begin the trial of Robbie McGregor on a charge of first-degree murder.
Justice Laura Bird commences the trial. Robbie McGregor is arraigned, and she takes his plea of not guilty.
Justice Bird then opens to the jury. Her remarks are customary to all jury trials and designed to inform jurors about the course of the trial and the procedures involved – the calling of witnesses by the prosecution, examination-in-chief of each witness, cross-examination by the defence and re-examination by the prosecution if necessary.
She defines the terms direct and circumstantial evidence, stresses the presumption of innocence that Robbie McGregor enjoys and states that the prosecution must prove its allegation of first-degree murder beyond a reasonable doubt.
Following Justice Bird, the prosecution opens to the jury. Andrew Midwood outlines the prosecution’s case against Robbie McGregor. He maintains that the charge of first-degree murder is based on planning and deliberation by McGregor in the murder of Joanne MacKenzie, his estranged partner and the mother of his child.
The prosecution tells the jury it has a second, alternative path to a finding of first-degree murder known as ‘constructive first-degree murder’. This allegation maintains that Robbie McGregor first kidnapped and forcibly confined Joanne MacKenzie by luring her by pretense into his truck before he killed her.
The first witness for the prosecution is Cynthia Taylor, Joanne MacKenzie’s mother, who gives the jury the background to the prosecution’s allegations.
Joanne MacKenzie and Robbie McGregor had dated only briefly when she became pregnant. She was 17, he was 19. After the birth of their daughter, the two lived together for a year, after which the relationship floundered, and they separated. The child remained with her mother.
For the next four years, the couple had a cordial agreement that allowed McGregor to visit his daughter and have brief custody of her in return for some support. There was no court order setting out the terms of the relationship.
Joanne MacKenzie supported herself and her daughter on social assistance, but at one point she failed to jump through the appropriate hoops and lost her entitlement. Opting to move in with family, she agreed to temporarily give custody of their 5-year-old daughter to McGregor.
This arrangement lasted about 10 days; Joanne MacKenzie concluded she could not live without her daughter and commenced court proceedings. Cynthia Taylor retained a lawyer for her daughter.
Stay tuned for future installments in this series, which will be posted every Monday.
Christopher Hicks is one of the founding partners of the criminal law firm of Hicks Adams. He has been practicing criminal law for more than 2 and a half decades, with a special interest, and extensive experience, in jury trials and appeals. In the course of his career, Christopher has been involved in scores of jury trials involving the most serious crimes in the criminal code, has argued appeals of both conviction and sentence in the court of appeal on a regular basis, and has represented clients in the Supreme Court of Canada on more than a half dozen occasions.