Monday, October 05, 2009
Fernando Manuel Alves rape case: closed courts, secret justice
I have blogged about this case before--and been finger-wagged to death by defence lawyer/commenters who stated that the reasons for judgement and the submissions of the Crown and defence counsel should be read before anyone rushes to judgment.
OK, fair enough, although not a single day in jail for an admitted rapist just seems wrong, somehow.
Accordingly, I took up the challenge, and attempted to obtain transcripts of the documents. I was quickly informed that the judge had placed a ban on publication, under Section 486.4 of the Criminal Code.
This Section permits the usual ban to be put in place to protect the identity of the complainant and wirnesses in such cases. It reads in part: "(1) [T]he presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way."
So I addressed the following self-explanatory letter to the judge who decided this case, the Honourable Judge Gregory Rideout:
Judge Gregory Rideout
222 Main Street
Dear Judge Rideout:
I am a blogger who is interested in a recent case over which you presided, in which a Mr. Fernando Manuel Alves was given a conditional sentence for sexual assault.
I have applied to the local transcription services for the reasons for sentence, as well as the submissions of opposing counsel. I have just been informed by that agency (please see attached) that you placed a ban on release of these materials under Section 486.4 (4) of the Criminal Code.
As I understand it, this ban is usually imposed to protect the identity of complainants in such cases. I have no interest in obtaining the identity of this person, and would be entirely satisfied with a transcript that redacted her name.
Hence I am formally requesting that you modify the ban to permit the release of the documents with the complainant’s name removed.
I look forward to your positive response.
Readers will note that I left out the possibility of redacting the names of witnesses, and identifying information, but my intent was nevertheless clear.
In the mail on September 24th, I received the following:
I received correspondence via facsimile on September 15, 2009, seeking release of the Reasons for Judgement in R. v. Fernando Manuel Alves. At this point subject to a bona fide reason why you are looking to obtain submissions and reasons for sentence, the Honourable Judge G. Rideout would not be inclined to alter the ban on publication.
That actually seemed reasonable to me--why not explain myself?
So I faxed back the following, same day:
Dear Judge Rideout:
I am in receipt of a communication from your office dated September 15 with respect to my request for the release of the Reasons for Judgement in R. v. Fernando Manuel Alves.
It is suggested that I state a "bona fide" reason for my request. In case I was too allusive in my first communication, I am concerned about the public perception of the extremely light, non-custodial sentence handed down in this case. That sentence does not, given the facts that are already public, appear to be commensurate with the brutal assault to which the defendant pleaded guilty. Public confidence in the administration of justice can be eroded by such perceptions.
Accordingly, I would like to write an article that provides the other side, if you will. As indicated earlier, I would be satisfied with a transcript that redacted names and identifying information of the complainant and any witnesses.
I regret having not been clearer in my first letter, and look forward to your positive response to this one.
This morning I received this:
Dear Sirs [sic]:
RE: R. v. Fernando Manuel Alves
Thank you for your correspondence of recent date. I have been advised by the Honourable Judge G. Rideout that a transcript of Reasons for Sentence for your stated reason do not meet appropriate criteria to release the transcript even with deletions of names.
So there we must leave it. Obviously I was attempting to accommodate myself to the requirements of the Criminal Code provision by expressing my willingness to accept a redacted transcript. No dice.
Instead, with the lordly presumption that too many unelected judges assume once they are elevated to the bench, I was told, second-hand, to get lost. Public confidence in the ability of the legal system to deliver justice does not appear to be a "bona fide" reason to release what should be on the public record anyway.
Or could it be that the good judge is simply being timorous about allowing the reasons to be known for his "boys will be boys" wrist-slap? Your guess is as good as mine.
UPDATE: (October 6) Reader and lawyer "truewest" suggests that I press on. Accordingly, I have this morning written back to Judge Rideout to ask what the "appropriate criteria" are for access to his Reasons for Sentence. Stay tuned.
Posted by Dr.Dawg at 10:53 AM