The man charged with second-degree murder in the death of Tina Fontaine was directly indicted in a Manitoba court Tuesday afternoon.
A preliminary hearing had been scheduled for Raymond Cormier in May but that's all out the window now. Cormier's case will now proceed directly to trial.
"That is, quite honestly, a problem for us," said Tony Kavanagh, the senior counsel on Cormier's defence team.
"A preliminary inquiry is a very useful tool for the criminal justice system, Crown and defence alike," said Kavanagh, a former Crown prosecutor.
"What it really allows us to do is to zone in on the key issues. Who are the main witnesses? What's the key issue of contention in terms of this case and in a case as serious as this? It's perhaps the most important tool the defence and Crown has."
Without a preliminary hearing, Kavanagh said he and his client will have to sift through a vast volume of evidence without being able to hone in on the specifics of the case against Cormier.
"One of the difficulties, in fact, is because the preliminary inquiry was taken away from our client we have less of a chance to do what I would call the discovery process where we might test a few witnesses," said Kavanagh. "That's been yanked away from him."
Cormier was charged with second-degree murder in connection to the death of 15-year-old Tina Fontaine in December 2015 following a months-long elaborate Mr. Big Sting. Since that arrest, he has been in segregation, mostly at the Brandon Correctional Centre
- Tina Fontaine's alleged killer says police fabricated evidence
- Ray Cormier was spotted burning trash outside apartment connected to Tina Fontaine's death
Manitoba Department of Justice Prosecutions policy states "normally a preliminary inquiry should be held and a direct indictment should not be considered unless exceptional circumstances exist that outweigh the benefits of holding a preliminary inquiry."
According to the policy, "overriding the right to a preliminary inquiry by preferring direct indictment is an extraordinary step."
The policy says the Crown can press for direct indictment if:
- There is danger of harm, trauma or intimidation to witnesses or their families.
- Reasonable basis to believe that witnesses will attempt to subvert court process.
- The age or health of victims and witnesses is factor.
- A lengthy court process creates a substantial inconvenience to witnesses.
- The need to protect ongoing police work.
Perhaps most relevant to an investigation, which included a Mr. Big Sting, the policy states "the Crown can seek direct indictment if the outcome of the case will be largely dependent on the outcome of Charter challenges to Crown evidence that cannot be advanced at a preliminary inquiry," for example, whether or not wiretap evidence could be used.
'A great concern'
Kavanagh said he doesn't know which arguments the Crown made to proceed to direct indictment.
"It's always a great concern when the Crown takes this step," said Kavanagh.
"It does bring with it consequent dangers and one of the dangers especially in a case with a Mr. Big — especially in a case with other tenuous evidence and our client strongly denies this allegation — it takes away that opportunity to discover," said Kavanagh. "So it won't be until the trial itself that we'll actually get to see what we're dealing with."
Although rare, Manitoba Justice has granted direct indictments in high-profile cases before. In 2010, a preliminary hearing was scrubbed in the case against Denis Jerome Labossiere, who was later convicted of slaying his parents and brother.
A preliminary hearing was also scrubbed in the case of Jeffrey Cansanay who was facing charges of second-degree murder. In 2007, the original case against Cansanay was thrown out after going straight to trial because two witnesses ended up refusing to testify. Cansanay was re-arrested, retried and convicted three years later.
Kavanagh said Cormier is disappointed and concerned by the decision.
"He thought it was yet another step in the process of curtailing what he sees as his rights, his ability to defend himself against some of the most serious charges in the criminal justice system," Kavanagh said.
Winnipeg lawyer Greg Brodsky is not involved in the Cormier case but has represented other clients whose cases proceeded by direct indictment.
Brodsky said omitting the preliminary inquiry could put an accused at a disadvantage.
"It's a speedier result but no, it doesn't bode well for him," Brodsky said. "It means he doesn't have a chance to see what the strengths of his defence and the strengths of the Crown's case are."
Brodsky said if the justice system wants speedier trials it should appoint more judges and crown attorneys, hire more court clerks and build more courtrooms, rather than skip preliminary inquiries.
He said he also dislikes the optics of proceeding by direct indictment.
"You can't presume that someone is an evil, dirty, rotten scoundrel because there is a direct indictment," said Brodsky.
One of Brodsky's former clients was James Driskell, whose 1991 murder conviction was overturned.
A commission of inquiry into Driskell's case concluded in 2007 that proceeding by direct indictment contributed to Driskell serving 13 years in prison after being wrongfully convicted.
"I believe that had a preliminary inquiry been conducted in this case, the likelihood of this miscarriage of justice having occurred would have been diminished," wrote commissioner Patrick LeSage, a former Ontario chief justice.
In Cormier's case, Kavanagh estimates the earliest a trial date will be set will be the end of 2017 or early 2018.
Crown attorney James Ross declined comment.
The direct indictment will also delay another legal matter Cormier is grappling with — an appeal before the Law Enforcement Review Agency (LERA). Cormier filed a complaint in 2016 with LERA claiming Winnipeg police fabricated evidence against him in the death of Tina Fontaine.
Cormier had a LERA court date scheduled for Wednesday but it will now be put over to another date.
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