Supreme Court justices Rosalie Abella, left, and Marie Deschamps.FRED CHARTRAND/The Canadian Press
A clash between liberal and conservative factions on the Supreme Court of Canada has ended in a robbery conviction for a Nova Scotia man linked to a crime by a single piece of evidence - a Halloween mask.
The terse standoff between factions of the court illustrates the growing isolation of judges who tend to favour the rights of the accused.
The defendant in the case, Marty David O'Brien, is serving six and a half years in prison for the 2009 robbery. The mask with his DNA on it was found alongside a large knife and a cash register cover in the neighbourhood where a convenience store had been robbed.
In a 5-2 decision, the court majority said that the DNA link was so significant that it didn't matter that the trial judge had heard inadmissible evidence revealing Mr. O'Brien's criminal record.
However, the two minority judges - Mr. Justice Ian Binnie and Mr. Justice Louis LeBel - accused their colleagues of "brushing off" the dangers of wrongful conviction in a case that cried out for a retrial.
The turning point at Mr. O'Brien's trial came when a police officer testified that the defendant was a ne'er-do-well with a record of criminal offences. Long-standing rules of evidence state that information revealing bad character can be admitted only in certain, highly specific circumstances.
The error was compounded when the trial judge and lawyers on both sides referred to the evidence openly later in the trial.
The Nova Scotia Court of Appeal ruled 2-1 that the trial judge never made it clear whether he had tried to purge his mind of the inadmissible evidence. It ordered a retrial.
Madam Justice Rosalie Abella disagreed. Writing for the majority in an appeal of the Nova Scotia decision, she said that statements by the trial judge left a strong inference that he was unaffected by his knowledge of Mr. O'Brien's record.
"A trial judge has an obligation to demonstrate through his or her reasons how the result was arrived at," said Judge Abella, writing on behalf of Chief Justice Beverley McLachlin, Madam Justice Marie Deschamps, Mr. Justice Marshall Rothstein and Mr. Justice Tom Cromwell. "This does not create a requirement to itemize every issue, argument or thought process."
Judge Abella cautioned the minority against creating "a new unchartable universe of appellate review" in which appeal courts interfere in perfectly legitimate conduct by trial judges.
"Judges are entitled to have their reasons reviewed based on what they say, not on the speculative imagination of reviewing courts," she said.
Mr. Justice Binnie, who has spoken up often for the rights of the accused, retires in August. Madam Justice Louise Charron, who generally adopts a pro-police stand in criminal cases, retires the same day.