Old emotions are being stirred again with the Saskatchewan Court of Appeal's order of a new trial for Kim Walker, the Yorkton man convicted in 2007 of murdering James Hayward.
The three-person Appeal panel made the decision unanimously on June 30 based on a violation of Walker's right to be present during all parts of his trial.
Walker argued for a new trial on the grounds of what he claimed were several errors made by trial judge Justice Jennifer Pritchard, including unfairly limiting the jury's options to acquit or to consider alternate defenses. However, the Court found another of Walker's submissions-an account of private meetings between the judge and counsel to discuss her opinion on the case-compelling enough to make it the sole focus of its decision.
According to an affidavit sworn by Walker's trial counsel, Morris Bodnar, he and Crown Counsel were summoned to the judge's chambers on two occasions during the trial to discuss possible defenses and the possibility of pursuing a plea bargain. At the second meeting, the judge indicated her opinion of the case. Walker was not present at either meeting, and no record of the meetings was made.
The Appeal panel found that these incidents violated s. 650(1) of the Criminal Code, which states that "an accused shall be present in court during the whole of his or her trial."
"If s. 650(1) is understood as being concerned with ensuring an accused person does not perceive the trial process as unfair or unjust," wrote Justice Robert Richards in a 14-page decision, "it must surely be offended in situations where, in mid-stream of a trial, a judge privately offers his or her view of the merits of a case and raises the issue of a plea bargain."
The Court dismissed arguments by the Crown that the private meetings did not constitute part of the trial, noting that any meeting in which such essential matters were discussed must naturally be a vital part of the case.
"It is difficult to see how an accused person could not have a profound interest in such an extraordinary turn of events," the decision reads.
The Court acknowledged that there was no suggestion of bias on the part of the trial judge, and that she "no doubt acted innocently."
"However, this is not the point," the decision continues. "The perception of fairness and impartiality is an essential characteristic of the criminal justice system and it must be guarded rigorously."
Walker was convicted of second-degree murder in relation to the 2003 shooting death of 24-year-old James Hayward, who at the time was in a relationship with Walker's 15-year-old daughter. Walker believed that Hayward was providing his daughter with drugs.Walker could be released on bail within a matter of weeks.
