Defence sought mistrial one day after start of Fredericton mass murder proceedings

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FREDERICTON — One day after the trial for the 2018 mass shooting in Fredericton began, the defence sought a mistrial, which could have derailed the legal proceedings against admitted killer Matthew Raymond.

Now that the evidence is complete and jurors are sequestered, trial details kept from them can be reported.

On Sept. 16, defence lawyer Nathan Gorham applied for the jury to be removed and for the trial to proceed before a judge alone. Gorham said prosecutors had made improper comments in front of jurors in their opening statements.

"The prosecution's conduct violated the charter by introducing extraneous, inadmissible matters that tend to undermine trial fairness," he wrote in his mistrial application.

Raymond, 50, has pleaded not guilty although he has admitted to shooting Donnie Robichaud, Bobbie Lee Wright and police constables Robb Costello and Sara Burns. His defence team is arguing he should be found not criminally responsible because a mental disorder left him incapable of appreciating that his actions were wrong.

Crown prosecutor Jill Knee told the jury during her opening statement that the Raymond case was unique. Raymond would admit, she said, that on Aug. 10, 2018, he shot and killed the four people.

"The accused intends to call and claim the defence of not criminally responsible by mental disorder," Knee told jurors. "As I address you today, the Crown does not know what evidence, including medical evidence, the accused intends to call in order to prove the defence of not criminally responsible."

Knee said the Crown assumed the defence's evidence would show that the accused was suffering from a mental disorder. But, she said, the evidence would also show the accused appreciated the nature of his actions and knew killing four people was wrong.

"The evidence will show the actions of the accused were planned and with purpose," the prosecutor said.

Gorham accused Knee of improperly arguing why she thought the defence would fail. He also accused co-prosecutor Claude Hache of making improper comments in front of jurors.

Gorham said in his application that Hache, "suggested that the defence was attempting an underhanded scheme . . . and he repeated the inaccurate claim that the prosecution has been left in the dark about the anticipated defence evidence."

Raymond's lawyer provided a list of steps the defence had taken to alert the prosecution of the evidence in advance of the trial.

In a 12-page decision, Justice Larry Landry of the Court of Queen's Bench said the Crown's opening address "went a little too far," but he denied the application for a mistrial.

"A mistrial is a remedy of last resort," the judge wrote. He said it was misleading for the Crown to contend it wasn't fully aware of the defence's evidence, noting the defence didn't have the obligation to disclose its case to prosecutors.

"I am convinced that the fact-finding process has not been undermined," he concluded.

On September 23, Landry told jurors to disregard the Crown's comments about not being aware of the defence evidence. The judge also told jurors to disregard the arguments and opinions the Crown made during its opening statements.

There were other incidents that could have disrupted the trial.

A juror was dismissed on Oct. 16 after he was observed playing the puzzle game Sudoku in court. Justice Landry said while the juror may have been able to pay attention to the proceedings while playing the game, the perception was not acceptable.

"I am of the opinion that because of this, because of the fact that he was playing those games, that is in itself sufficient for me to exercise my discretion and to discharge him from the jury," Landry said.

And on Nov. 2, Gorham arrived in court with a large patch over his left eye. He said he had been poked with a pen and had to undergo emergency surgery the night before. Instead of taking a break, the lawyer proceeded with his case.

The jury began deliberations late Tuesday, and they resumed Wednesday morning. The trial has lasted more than nine weeks.

This report by The Canadian Press was first published Nov. 18, 2020.

Kevin Bissett, The Canadian Press