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Every so often, when controversy erupts over the handling of a high profile case, those of us with some experience with the system are in a position to clarify issues that may concern the public. The recent disposition of the Todd Bertuzzi case raises some issues worth commenting on.
First, a couple of disclaimers: I was not involved in any way, so these general comments are based only upon the media accounts of what happened. Second, nothing that follows should be taken as a criticism of the sentencing judge, who heard full submissions from the parties before him and made, by all accounts, a careful and well-reasoned decision in imposing sentence.
Todd Bertuzzi, a member of the NHL Vancouver Canucks, chased, caught and punched Colorado's Steve Moore from behind late in a hockey game last March 8. The incident was witnessed by thousands of people in attendance and watching on television. Several weeks later, Mr. Bertuzzi was charged with assault causing bodily harm. After a few more court appearances, a trial date was scheduled for January 17, 2005 in BC Provincial Court. This scheduling was consistent with the procedural constraints inherent in a justice system that generally measures time in weeks, months and sometimes even years.
According to media accounts, the Crown and defence reached a plea agreement on Monday, December 20 and appeared in Provincial Court on Wednesday, December 22 to enable the defence to enter a new plea of guilty. So far, there is nothing particularly untoward about this procedure, which occurs frequently in the courts of the province.
Where this case becomes curious is in the Crown's handling of the sentencing hearing. Unlike many cases which have no victims or involve disinterested victims, this case involved an injured victim and his family who were vitally interested in the outcome. They were on the other side of the continent and apparently wanted to fully exercise their rights under s. 722 of the Criminal Code to present victim impact statements to the judge. The Crown, as guardian of the public interest, should have ensured that Mr. Moore had this opportunity. All of the participants, their lawyers and the court had reserved time less than a month later for the hearing. Even if the interests of justice dictated that the new plea be entered on December 22 (which I doubt), I have heard no satisfactory explanation from the Crown why sentencing could not have been handled on January 17. A word from the Crown, which had carriage of the case, could probably have made that happen. Instead, the parties spent a full day, and then some, making submissions on sentence a few days before Christmas.
The Crown should answer some questions: How did it get a full day of court time on such short notice? Why didn't the Crown simply deal with sentencing on January 17, given the Moore family's desire to be present? Does the Crown deal with all victims of crime in this fashion? Until these questions are answered more fully, there will be a perception that Mr. Bertuzzi was treated differently than others may have been. That perception does nothing to enhance confidence in the system we lawyers have dedicated our professional lives to.
