Behind the scenes
- Subtitle: Cover Story
In what may have been the biggest murder case of his career, criminal defence lawyer Michael Edelson had no opportunity to unsheathe his most potent weapon. Known for his ability to cripple key Crown witnesses with cutting cross-examination, Edelson struck no blows. His client, 47-year-old David Russell Williams, a former colonel in the Canadian air force and commander of the country’s largest airbase, took the remarkable step of pleading guilty to two charges of first-degree murder. “This plea was extraordinarily unusual because only a handful of people in Canada have ever pleaded to first-degree murder and he may be the first ever to plead to two first-degree murders,” says Edelson, a founding partner of Edelson Clifford D’Angelo Barristers LLP, a small Ottawa firm with a history of defending high-profile clients.
Williams also pleaded guilty to two counts of sexual assault, two counts of forcible confinement, and 82 break-ins. He was sentenced to life in prison with no chance of parole for 25 years. The former military leader and pilot, who had flown aircraft carrying royalty and prime ministers, raped and killed two women: Jessica Lloyd, 27, who worked at an agency that co-ordinates school bus schedules, and Marie-France Comeau, 38, a corporal in the Canadian Forces who worked with Williams at Canadian Forces Base Trenton. Williams broke into their homes, bound the women, and assaulted them. He documented the lengthy attacks with still photos and video. He also meticulously documented a 26-month break-in spree that began in September 2007 in Tweed, Ont., where he has a home. He crept into houses there and near his second home in Ottawa, while the occupants were away, and rifled through the underwear drawers of young girls and women. He dressed in the undergarments, masturbated, and photographed himself. He stole and catalogued hundreds of pieces of lingerie.
His detention in February 2009 and the reports leaked to the media within days that he had confessed to all of the crimes set off a media frenzy that culminated in a sensational four-day plea-and-sentencing hearing held in a small courthouse in Belleville, Ont., last October. Dozens of reporters, including a correspondent from The New York Times, attended. The lurid case was completed in a breathtakingly brief eight months.
It was, from many perspectives, “unprecedented,” says Edelson, and a case he believes should spark serious debate in the legal community. “I think there should be a roundtable of leading defence, prosecution, [and] judges to discuss the implications of new media and management of files that are very high profile and the development of rules of practice and rules of professional responsibility to deal with these issues so that lawyers don’t get offside,” he says.
His firm took extraordinary steps to ensure the security of the disclosure they received. “We banned all of our law clerks from actually looking at the material,” says Edelson. “First time I’ve ever done it in 34 years.” The step was necessary, he felt, to maintain security and to insulate staff from the graphic content.
“It was very apparent to Michael and I quite early in the process that some of the evidence was quite graphic and, as was alluded to in the courtroom, it was very disturbing,” says Edelson’s partner Vince Clifford. Added Edelson: “Between us, Vince and I have about 60 years of experience almost and we’ve done a lot of murder cases and we’ve seen the autopsy shots and terrible evidentiary scenes but this one was quite different.”
An associate who was asked to work on the file was briefed about the nature of the material and was offered the chance to decline. “We wanted him to be forewarned, however, that in working on this file he would be exposed to things that he would never forget,” says Edelson. In the end, only a handful of staff were involved.
Edelson is concerned about the use of electronic devices by reporters in the courtroom to instantly transmit stories and pictures. Ontario Superior Court Justice Robert F. Scott, who presided over the case, permitted reporters to use smartphones and laptops in the courtroom. Media were not permitted to take pictures inside the courtroom, but they were able to instantly transmit unfiltered accounts of the graphic evidence through Twitter and live blogs. It wasn’t the first time such an order was granted in a criminal case in Canada, but Edelson believes a key issue has not been addressed. “Typically in a criminal case we really value the order excluding witnesses so that one witness can’t tailor their evidence to the next witness,” he says. “If you have instantaneous communication of the evidence, this means that all subsequent witnesses have access to the evidence in court as it’s unfolding.” It renders the traditional witness exclusion order “worthless,” says Edelson. “I would like to see our rules of practice amended . . . in order to address these issues and give judges and lawyers clear guidance. I think the law societies across Canada, the federation of law societies, should strike a committee to address the new media issues and how they will impact on trials and court proceedings.”
Retired Superior Court justice Tom Lally, who watched the Williams case unfold in his backyard in Belleville, where he now lives, thought a balance was struck in allowing journalists to report from the courtroom. “I know Rob Scott, the judge, he agonized over it and felt that this is the coming trend, to have more public accessibility to the courts,” says Lally, who retired three years ago after 25 years on the bench. He says he doesn’t expect to see the practice permitted widely. “I don’t see it coming in every case. This was an exceptional case.”
Lally presided over at least 20 murder trials during his career. “I don’t think I’ve ever seen anybody like [Williams],” he says.
Over the roughly four days of the proceeding, and despite the accused’s guilty plea with its mandatory sentence and fixed-parole ineligibility, the Crown tendered a mountain of evidence, including roughly 3,000 photographs taken by Williams. During the proceeding, Crown attorney Lee Burgess said he struggled over what evidence to tender but wanted to ensure parole board members, considering the risk Williams poses decades from now, would have a complete catalogue of his crimes. While contacted for this story, officials in the Crown law office of the Ontario Ministry of the Attorney General declined to comment on the handling of the Williams case.
“Normally when a plea of guilty is entered, it’s to abridge matters,” says Toronto criminal defence lawyer Marie Henein, who is president of The Advocates’ Society. “It’s not really clear to me why the Crown would have chosen to lead four days’ worth of evidence, which ranged from detailed descriptions, to what was on videos, to the release of photographs and the confession, so it was really a wide-ranging set of facts and that’s a little unusual.” Henein doesn’t accept the argument that the evidence had to be admitted for future parole purposes. “You can file the videotapes if you wanted or a summary under seal with simply highlights of it out of respect to the people that were subjected to this. You could have done it in a variety of different ways that ensured that the record was complete but that it wasn’t splashed on the front page of every paper.”
She questions the release of so much information, and its widespread dissemination by the media. “What did we learn from the details?” she asks. “We learned what we always knew, which was that Russell Williams is an aberrant, disturbed person who committed things that were just horrendous and that left in his wake a lot of tragedy but that lesson we knew, we didn’t need to see this.”
Among the evidence tendered was part of the 10.5-hour-long interrogation video of Williams, in which he confesses. Don Stuart, a professor at Queen’s University’s law school in Kingston, Ont., and a leading authority on criminal law and procedure, believes that was a public relations exercise. “In some respect, that was also completely irrelevant and that could have been preserved without showing it,” says Stuart. “People sit back and say that was a brilliant interrogation, not really. They had the evidence already to inculpate him, so they got some rapport with him and tried to find out where his weak spot was and then confronted him with the incriminating evidence and he coughed it all up.”
Stuart notes there was no lying or deception on the part of the police interrogator. “Under the rules of interrogation that we’ve got set up by the Supreme Court, police are encouraged to lie and talk about non-existing evidence and there’s no right to counsel present or to be considered,” he says. “Many of us are saying that the Charter of Rights and judicial controls on police interrogation are woefully weak in Canada so in that respect it was a PR job because it sort of depicted that all police interrogations are as civilized as that, they’re not.”
Burgess read a 95-page statement of facts into the record that included a description of all 88 crimes. The descriptions included a summary of what is seen and heard during the two death videos that Williams recorded, though the videos were not played in court and were not released. Defence lawyer Clifford is one of only a handful of people who has watched the tapes, which run for roughly five and a half hours. “It’s something that will carry with us until we finish practising and maybe even for all of our days,” says Clifford. “We’re never going to forget what we’ve seen,” Edelson says.
The videos are so graphic that police refused to make copies available to the defence as part of the usual disclosure process. In order to see the tapes, Clifford and another lawyer had to travel 400 kilometres from Ottawa to Orillia, Ont., where they sat in a secure room and watched the tapes. Even Crown prosecutors had to travel to Orillia to view the tapes. At the time Clifford viewed the tapes, the defence did not know if the Crown wanted to play them in court. “The Crown had the discretion to play videotape evidence or not and as long as the Crown had that discretion, we felt it was incumbent upon us to have a representative of the defence team review the evidence given the seriousness and the unprecedented nature of the case,” says Clifford.
The defence team did not think it was necessary to play the tapes and was happy to learn the Crown would not seek to introduce them. “We saw no useful purpose ourselves in playing the tapes,” says Edelson. “One concern we did have was that if family members were present in court, I mean, members of our team having seen the tapes, we knew that the impact on them would be irrevocable. They would not recover.”
The defence team succeeded in limiting the release to the media of evidence photos that could be published or broadcast. Roughly 20 photos were released as a result of consultations before the proceeding. “We played a significant role in limiting the kind of material that would be promulgated as a result of that process,” says Edelson. But the veteran lawyer cannot forget what he’s seen. “A lot of it was extremely graphic, as you can imagine,” he says. “Many of the photographs which we had access to were not shown in court for reasons, basically that they’d be too disturbing for the public to view.”
Edelson has a warning for other lawyers, particularly newcomers to the profession. “There’s always been a view that the glory is in the murder cases, that these are the most dramatic, that these are most covered by the media,” he says. “The bottom line is, if you’re a young counsel and you haven’t been exposed to a lot of this horror, you really have to think long and hard about whether you should be lead counsel on a case a couple of years out of the bar, quite apart from issues of competency, because you’re going to see things that you may have trouble dealing with.”
Clifford notes the judge called it one of the most disturbing cases in Canadian judicial history. “That has an impact on the lawyers involved in the case and the way it impacts us is something that is private,” he says. “It’s something that we probably can’t explain and nor do we want to try to describe it . . . but our palliative care comes from knowing, as Michael said, that we served our client in the highest order of the tradition of defence lawyers. We did our ultimate best for Mr. Williams.”
Published in Canadian Lawyer Cover Story