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Focus: Appellate lawyer on a roll

|Written By Glenn Kauth

After winning four homicide appeals in a row, Catriona Verner has been on a roll lately.

‘I find that in almost every case, there are at least minor errors made,’ says Catriona Verner.

Most recently, Verner of Hicks Adams LLP won a new trial on her client’s behalf in R. v. Docherty. In that case, a jury had convicted Kenneth Docherty of manslaughter for the killing of a loan shark who had entered his home to collect on a debt. The appeal centred on whether the trial judge erred in instructing the jury that they could consider Docherty’s failure to retreat from the house when it came to the validity of his self-defence argument. On Nov. 19, the Ontario Court of appeal found the judge had made an error and ordered a new trial on the charge of manslaughter. In the meantime, the Crown is trying to appeal the matter to the Supreme Court of Canada, says Verner.

On May 30, the appeal court ordered a new trial in R. v. McIntrye. That case dealt with Aimee McIntyre’s level of culpability in the killing of Karl O’Reggio. The jury convicted her of first-degree murder on the basis that she aided or abetted Jonathan Ebanks in killing O’Reggio by driving him to the victim’s apartment. But the appeal court found the trial judge had erred by not focusing the jury on when Ebanks formed his intention to kill O’Reggio given evidence that it arose only after he entered the apartment. According to Verner, the case is to go back to trial next year as the Crown hasn’t accepted an offer to plead guilty to manslaughter.

In a case that dates back to 2011, Verner’s client Mirko Bucik is back on the street after the appeal court ordered a new trial. That case involved another accused who allegedly participated in the beating death of Terry Auld. The defence conceded Bucik’s participation in the beating but argued the Crown had failed to prove the intention necessary for murder.

In its ruling last August, the appeal court found errors in the trial judge’s treatment of evidence presented by Bucik’s landlord. In recounting a conversation she had with him after the killing, the landlord gave a statement to police indicating Bucik quoted the other accused as saying, “I’ll kill the bastard.” But the trial judge, in reviewing the evidence with the jury, said the landlord quoted Bucik as having used the phrase “they were going to kill the bastard,” the appeal court noted.

In its ruling, the Court of Appeal ordered a new trial on the charge of second-degree murder, but Bucik is now free after pleading guilty to manslaughter and getting time served. “He walked out of the box,” says Verner.

In the fourth case, the Crown agreed to release Verner’s client right away if he pleaded guilty at the second trial.

He originally had five years left to serve after the jury came back with a manslaughter verdict, says Verner.

While Verner has been on a winning streak, she has certainly put in her time as an appellate lawyer. In fact, she began doing appeals while articling at the same firm she has been at since 2001. At the time, the firm had a huge backlog of appeals and the work fit well with her temperament. Since her call to the bar, she has acted in only three trials as a junior lawyer. “I hate court,” she says of her predilection for appeal work. “If I could avoid court altogether, I would.”

Her appeal work, of course, involves going through cases in detail in an effort to find errors of material consequence. “Ninety per cent of the time, it’s the judge’s instructions,” she says, noting she starts by looking at the evidence the jury relied on to see if there was some error in it.

“I work backwards from the verdict to decide whether there was a fair trial,” she adds, noting the majority of the errors made by judges are immaterial to the verdict. “I find that in almost every case, there are at least minor errors made.”

The majority of Verner’s work involves murder and sexual assault cases. Sexual assault matters, of course, raise their own distinct types of issues on appeal. One case, for example, involved a 16-year-old girl allegedly assaulted by a 32-year-old man. While the trial judge told the jury it could consider the age gap as evidence of a lack of consent, Verner argues that may not necessarily be correct as the girl could have been fine with having sex with older men. But since the defence counsel couldn’t go into the complainant’s sexual history, the result was unfair as the judge was asking the jury to speculate on an area that was off limits to the accused’s lawyer, Verner maintains.

Interestingly, Verner says most of the clients she fights for on appeal are actually guilty of something. Her job, she notes, is to ensure the accused received a fair trial.

But in some cases, such as the current matter of R. v. Kassa, Verner has a firm belief that her client had nothing to do with the crime. “He’s the one client that I actually believe is fully innocent,” says Verner. In that case, she notes, the court convicted him in a homicide case on the basis of evidence from a girlfriend he broke up with after the fact. While the girlfriend expressed surprise when police first told her they believed the accused had something to do with the killing, she later gave an inculpatory statement after the pair had broken up.

“Her evidence didn’t really make sense. She seemed to have a motive to lie,” says Verner, who notes the girlfriend later recanted her evidence and then reversed herself once more.

For Verner, the case is harder than most as she truly believes her client is innocent. “If I lose, I’m certainly going to take it to the Supreme Court of Canada or at least try to,” she says.

“I definitely have a passion for criminal defence work and the right to a fair trial.”

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