There are concerns about the integrity of an upcoming murder trial after sensitive and graphic evidence was posted on social media by one of the accused killers, whose lawyer gave him a video containing the disclosure on a USB device.
On Monday, the lawyer recused himself and self-reported to the law society. But with the jury trial set to begin in less than two months, the worry is whether witnesses or potential jurors have viewed the video that was discovered online last week.
Two brothers, Julius and Theo Wheyee, and a third man, Saad Osman, are each charged with second-degree murder in the September 2015 death of Mohammed Saqib, whose body was found in a burned-out vehicle near Airdrie. The trial is supposed to begin April 9.
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Osman was given the promo-style video by his lawyer, Jared Craig, which Justice Glenn Poelman heard contained images of the victim, the accused, Crown witnesses and crime scenes.
"This is going to have a profound effect on all accused," said defence lawyer Adriano Iovinelli at the outset of Monday's hearing to determine how to handle the situation.
Disclosure is evidence gathered by police during the investigation that prosecutors share with an accused's lawyer early in the case so they can properly prepare a defence. But defence lawyers are not allowed to disseminate that sensitive material.
Poelman was told that Craig brought the video to the remand centre to show his client, who then somehow uploaded it to his Facebook page after the USB device was left in his possession.
'It's my fault': Osman
Crown lawyer Doug Taylor told Poelman the video was discovered last week by fellow prosecutor Vince Pingitore, who had been checking Osman's Facebook page periodically after police identified concerns with certain posts on the social media account during the investigation.
Craig was represented by senior defence lawyer Alain Hepner on Monday. Hepner said he advised his client to step away from the file right away and helped him draft a letter to the law society.
"It was an error in judgment, beyond," said Hepner. "[There are] materials there that compromise part of the Crown's case."
But Osman tried to take responsibility for the video being posted and pleaded with the court to allow Craig to remain on the case as his lawyer.
"I made a mistake, it's my fault. It shouldn't be on the internet," said Osman. "It wasn't his fault. It's not fair."
'He's too close to the file'
Taylor said Craig's recusal was "regrettable yet necessary" and that it would be "very awkward for Mr. Craig to continue."
"There's evidence to suggest he's too close to the file."
Defence lawyers for the brothers — Tonii Roulston, Andrea Urquhart and Iovinelli — have asked that the trial dates be kept but are considering making an application for a judge-alone trial given it's not known how widely the sensitive video was disseminated.
"The effect depends on who has seen it," said Iovinelli.
Poelman has asked Osman to try to find a new lawyer by Friday when the matter is back in court but the accused killer has indicated he has no plans to do that.
"The general public will be my lawyer," said Osman.
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An earlier version of this story said the sensitive and graphic evidence posted on social media included a photo of a dead body. In fact, it was a photo of the victim before he died.Feb 13, 2018 1:00 PM MT