PICTOU – On Monday afternoon, a small courtroom in the Pictou Justice Complex is expected to be the focus of heightened media attention.
A 15-day preliminary inquiry for Christopher Alexander Falconer, accused of kidnapping and murdering 19-year-old Amber Kirwan in October 2011, will begin at 1:30 p.m.
The case has drawn national media attention in the past along with crowds of onlookers waiting outside court to catch a glimpse of 30-year-old Falconer, the only person charged in the homicide investigation.
Kirwan went missing in the early morning hours of Oct. 9, 2011, after leaving a New Glasgow pool hall to meet her boyfriend at a nearby convenience store. A massive search effort and public vigils took place in the county for weeks following her disappearance, but police found her remains in Heathbell on Nov. 5.
The missing person case quickly morphed into a homicide investigation that resulted in the arrest of Falconer five months later. He was arrested in January on a parole violation in connection with a previous, non-related murder conviction and returned to Dorchester Penitentiary. He was charged with murder and kidnapping in May in relation to the Kirwan case.
A very large case
Crown attorney Bill Gorman said a lengthy investigation has taken place and volumes of evidence have been collected, much of which will be presented during the preliminary inquiry.
“Probably, volume-wise, this is the largest case I have ever dealt with in my 24 years of practice,” he said, adding that he and co-counsel Patrick Young have sifted through electronic and paper disclosure that is equivalent in volume to about 15 banker boxes of material.
Gorman said the majority of the disclosure was handed to defence lawyer Mike Taylor when he was named as Falconer’s lawyer in July, but some other evidence has since come in.
“Typically, depending on the nature of the investigation, once the investigation is complete, disclosure is complete and the Crown and the defence get it at one specific point in time,” said Gorman. “In this case, there was additional lab testing that required additional disclosure and additional investigative tasks that were followed up on, so disclosure is ongoing.”
Gorman said a preliminary hearing is essentially a “mini-trial” where Crown evidence will be introduced to the court.
More than 40 people are expected to testify during the preliminary hearing, scheduled to take place for three weeks this month and an additional two weeks in March. The inquiry will be held from Monday to Thursday, but some days will only be morning or afternoon sessions.
“In a preliminary inquiry, there has to be some evidence on all of the essential elements of the offence such that a reasonable jury, properly instructed in the law, could return a verdict of guilty,” Gorman said.
He said the Crown must prove to the judge in a preliminary inquiry that it has evidence on all the elements of the case so the accused can be bound to stand trial in Supreme Court.
“In this case, you are dealing with a murder charge, so in addition to other essential elements, you must prove a wrongful death, he said.
From a defence perspective, Falconer's lawyer Mike Taylor says a preliminary inquiry is a good opportunity to test the evidence and see what it will look like in trial.
Similar to a trial, he will get his opportunity to cross-examine witnesses on their testimony, but he isn’t required to present any of his own evidence.
Taylor said he has recently received a considerable amount of disclosure that has increased his workload, but he is standing behind comments he made in July that the Crown’s case is “circumstantial and speculative.”
"A lot has been going on during the past couple of weeks," he said, adding that receiving new information close to the start of a preliminary inquiry isn't ideal, but sometimes unavoidable.
"Sometimes it can't be helped, but it's a little later than any one of us probably would have liked," he said.
Dealing with public interest
The volume of disclosure isn't the only challenge both sides face considering the media attention and public interest this case has drawn in the past year and half.
Preliminary inquiries are not high on the priority list of media outlets because publication bans are usually in place preventing inquiry evidence from being published or broadcast until after the accused's trial or a guilty plea has been entered.
"You don't want information about the evidence to get out and taint a potential jury pool," said Gorman. "Basically, you want potential jurors to come in with a clean slate so they can hear the evidence in court and not a reporter's interpretation of the evidence."
However, in the new age of technology, both Gorman and Taylor say they are concerned about information from the preliminary inquiry being posted on the Internet.
"It concerns me in the sense of the possibility of the evidence being distorted," Gorman said.
Both Facebook and Twitter were popular sources of information for people looking for updates during both the missing person's case and the homicide investigation. In fact, at one point during the missing person's investigation, police issued a press release asking people to rely on credible news sources for updates on the case.
"This is a different world. You were able to post information about the (investigative) case and no one thought it was a problem, but this is different now," said Dean Jobb, associate professor of journalism at Kings University. "If you are publishing that information on the Internet, you are publishing it under a ban. If you do so, you are running the risk of being charged. If the police or courts feel it will undermine a fair trial, they will pursue it."
Jobb said the laws citing the publication ban might have been written well before the Internet was created, but they are still effective because they are blanket bans.
"Rarely do publication bans specifically say the news media," he said. "It is publication in the wide sense. It is publication to others. If you are disobeying this, you are breaking the law. It's not changed. There have been investigations of people who have released publications in violation of this ban."
John Piccolo, media liaison committee facilitator for the Courts of Nova Scotia, said in light of the new technological age, the court system has been addressing issues surrounding social media and the Internet.
He said rules have been put in place about tweeting from courtrooms while judges might address issues involving publication bans before the start of a case.
Piccolo said if someone involved in a case feels this ban has been violated,
it could be brought to the attention of the police or judge and a criminal investigation could take place.
After the inquiry
At the end of a preliminary inquiry, the accused is either committed to stand trial or discharged.
If the provincial court judge decides there is enough evidence to go ahead with a trial, Falconer will enter a plea in Supreme Court. Murder charges are automatic judge and jury trials in Supreme Court. In rare cases, provisions exist whereby an accused can elect trial by Supreme Court sitting alone, but only with the Crown's consent.
It's unknown when exactly a trial will take place since there are many factors involved when selecting a trial date, he said.
“It depends on what other matters are pending that chew up court time, do we have the physical facility to do it in and the availability of the judge," he said.
Despite the attention this case has generated during the past year and half, he feels a trial should be held in the county.
“The whole petit jury system was structured since the 1500s and you are to be tried by a jury of your peers,” he said. “The offence occurred in Pictou County, peers of the accused are in Pictou County and that is where it should be heard."