It was quite unusual to see a continuation of a trial last week, but since the Supreme Court ruling in R. v. Jordan that set new delay of trial guidelines, everybody has been very vigilant of the passage of time. The new standard is 18 months from arrest to disposition.
The case at hand is the aggravated assault trial of Kim Madsen related to an incident at the Country Inn September 24, 2015 that allegedly left another man, Dennis Peepeetch, paralyzed. The trial was originally set for November 29 and 30, 2016 with a continuation date of February 1, 2017. A complex case, there was little doubt at the end of the trial the judge would need some time to consider his decision. Even given a month—which is a pretty short turnaround—that would extend the verdict into March, which is 18 months.
By the end of the second day back in November, it became abundantly clear at least two more days would be required. The parties settled on December 28 and 29 and kept the February date for good measure. At the end of those two days both Crown and defence had presented their evidence, but arguments are yet to come. They scheduled another date in January for final summations and a secondary trial on breach charges laid after the accused was released on bail.
Given the timing of the trial continuation, between Christmas and New Year’s, I was allowed the luxury of actually attending most of it. What struck me is something I am reminded of pretty much every time I am able to watch eyewitness testimony, it is inherently unreliable and yet is so often the very foundation of evidence in our justice system.
The first big problem with the primacy in the justice system of eyewitness testimony is a misconception of how memory works. We tend to think it is like a video recording. The mind records, and when asked, we replay it as it happened. If it diverges from other evidence, such as in this case, an actual video, we tend to think the witness is lying although that is not necessarily so.
Rather, memory is more like reconstructing a puzzle with a lot of missing pieces. Each time we recall events, we might substitute pieces with bits of information gleaned from other sources, or from our life experience.
Just for example—and I am not by any means saying that this witness was right or wrong—but the paramedic who treated Dennis Peepeetch at the scene testified he “would have” done certain things. That makes a lot of sense because paramedics are governed by a lot of standard procedures and protocols. The question, which the prosecution rightfully asked, is “did you?” The answer was a bit ambiguous, but you cannot really fault the guy for not being 100 per cent sure whether he did certain things or not because it happened so long ago.
Similarly, the Crown was able to point out inconsistencies between one defence witness’s first and second police statements and her testimony under chief examination. She may very well have believed all three of her versions at the time she gave them. With memory sometimes, perception is reality.
The defence was just as effective in discrediting the Crown’s eye witnesses back in November, but again, I would contend the whole idea of eyewitnesses is inherently problematic. Personally, I can barely remember what I had for lunch yesterday, much less the details of an incident that occurred more than a year ago. If someone told me a week from now, I had salad and not fries with my burger, I may very well substitute that into my memory of the lunch.
In a nutshell, the Crown’s witnesses painted a picture of a frail and defenseless victim with a degenerative spinal condition, who was drinking moderately and was pleasantly friendly being brutally savaged largely unprovoked by an angry and violent attacker.
The defence countered with witnesses who described a highly intoxicated, belligerent drunk spoiling all evening for a fight and finally being obliged when he disgustingly spat in the face of the defendant, who had been quietly minding his own business.
The actual video seems to suggest something in between those two versions, but that’s not to say the witnesses don’t sincerely remember it differently.
The undisputed facts of the matter are that Madsen slammed Peepeetch into the ground several times and that Peepeetch is now paralyzed.
The Crown’s best witness that these two facts are connected is the doctor who treated the victim at hospital in Regina.
The defence’s best witness that they are not is the paramedic who immediately treated Peepeetch and said he was moving around at the time.
The Crown is doing its best to inextricably establish cause and effect while the defence is determined to raise reasonable doubt, as is to be expected.
Whether it matters is up to the judge who will have to decide just how credible the various witnesses are and whether the incident meets the standard for aggravated assault.
