'I was there first'
Defence lawyer wants mistrial after judge tells court accused's decision to use urinal next to him shows 'a total lack of common sense'
Northern News Services
Published Monday, December 8, 2014
SOMBA K'E/YELLOWKNIFE
A defence lawyer in a caribou meat wastage case in Behchoko is calling for a mistrial after the judge complained in open court that one of the accused used the urinal next to him during a break in proceedings.
Upon returning from the washroom after a five-minute break on Nov. 4, territorial court deputy judge Brian Bruser told the courtroom he was at one of two urinals in the Behchoko Community Centre where the case is being heard, when accused Frank Arrowmaker came up beside him and started using the other urinal.
There is one stall in the men's washroom while one of the two urinals is set lower on the wall and is intended for use by children.
Although no words were exchanged between the two men, Bruser told the court he wanted was bring the incident to the public's attention to ensure that everything in the trial happens above board. Bruser said Arrowmaker's decision to stand next to him at the urinal displayed "a total lack of common sense."
When Bruser asked what he thought of the incident, Crown prosecutor Roger Sheppard said it was of no concern to him. However, Arrowmaker's defence lawyer Jay Bran questioned why a sheriff didn't stop his client from entering the washroom, to which Bruser lashed out and shouted: "I was there first."
After the judge's outburst, Bran requested time to confer with his client and lawyers for the other two accused.
Bran then requested the case against his client be declared a mistrial in the trial by judge, arguing Bruser's
comments about Arrowmaker's "total lack of common sense" showed an "appearance of bias."
Bruser dismissed Bran's request, arguing "apprehension of bias must be reasonable and held up by reasonable and right-minded persons."
He proceeded to reaffirm that Arrowmaker's actions did show a "total lack of comment sense" but that because his comments were made with regards to a specific "incident otherwise not connected to the trial in any way" they were not sufficient grounds for a mistrial.
Bruser told Bran he had the option to request that NWT Supreme Court have him taken off the case.
Afterward, Bran told News/North he may make the request but he still needed to discuss the issue with Arrowmaker.
"No decision has been made yet," he said. "It's something I need to think about more and my client needs to think about more."
