ON SEPTEMBER 22, 1999, Patten made his second appearance in court, again under heavy security, to set a date for a preliminary hearing and to hear an application from defence counsel that the matter be held in provincial youth court. Those who attended were again required to pass through a metal detector at the door. Patten, this time with his hair cropped to the scalp and leg shackles jangling audibly, was led into the dock.
Sid Clark, the presiding judge, immediately ordered a publication ban on evidence revealed at the hearing, then called the case forward in adult court. David Kidd, the same Crown counsel as in the Dhillon trial, was granted a date of March 17, 2000, for a preliminary hearing of the evidence in the case. Kidd estimated he would need four court days to present the Crown’s case. Beckingham then made an application under Section 16 (Subsection 1.01) of the Young Offenders Act to have the matter heard in the provincial youth court. Judge Clark simply asked the attending bailiff to call the youth court list, and the proceedings immediately fell under the Young Offenders Act.
Kidd asked the judge to order a predisposition report, and due to the severe nature of the crime, a psychiatric assessment. Beckingham doubled down, requesting a neuropsychological examination to be added to the court assessment. Judge Clark assented to each request. Kidd then advised that this court-ordered assessment could not be completed within the normal thirty-day requirement, and Beckingham agreed to waive it. Kidd anticipated that the psychiatric assessment could be completed by January. Clark then set a date of November 3 to hear the application to try the case in youth court. Kidd, for the record, said the Crown would oppose the application.
Following the hearing, I spoke with Crown counsel Steve Stirling, who explained the different prospects the accused faced if tried in adult court versus youth court. The stakes were significant. If convicted of first-degree murder in adult court, the accused would receive a mandatory sentence of life imprisonment. But because he was only seventeen at the time of the crime, he would be eligible for parole in ten years. If convicted in youth court, he would serve “a period that shall not exceed ten years.”
But there was a big “however.” That ten-year sentence would consist of a custodial sentence “which shall not exceed six years,” followed by four years conditional supervision. In practical terms, “conditional supervision” is the same as parole. That distinction between a young offender and an adult would play out just days before the next hearing.
THE GRIM REAPER AFFAIR
Halloween night of 1999 proved to be yet another lively night for police and police reporter in Port Alberni. I was on a ride-along, and the early part of the evening was largely uneventful. But at 10:30, a sixty-seven-year-old cab driver, Jerry Gill, stumbled up to the front door of a home in the Beaver Creek district. Gill told police he had been robbed by two passengers. One of the suspects was wearing a costume and face makeup—and he was packing a large handgun. Gill vaulted out of the cab and took cover in some nearby shrubbery while the suspects sped off with his cab.
The suspects soon abandoned the cab and began running toward town along the railway tracks near the McLean Mill National Heritage Site. Several kilometres later, they encountered RCMP Constable Eric Sheppard and auxiliary Constable Perry Shepard. Hearing the sound of heavy footfalls in the darkness, the two officers braced for a confrontation. Suddenly, the Grim Reaper burst into the clearing (his accomplice was not costumed). In the darkness, Sheppard and Shepard immediately took the pair to the ground, hearing an audible “clunk” in the process. That clunk proved to be a fully loaded, long-barrel .357 Magnum revolver, recently stolen from the home of a retired police officer.
The two suspects appeared in provincial court on Monday, November 1. The Grim Reaper proved to be a twenty-one-year-old former Port Alberni resident who later pled guilty to one count of using a firearm in the commission of a robbery and one count of using a disguise in the commission of an offence, with a minimum sentence of four years in custody. His accomplice, however, was five days short of his eighteenth birthday, thereby falling under the Young Offenders Act. He would later receive two years’ probation.
The next court stop in the States case occurred two days later, when defence lawyer Charles Beckingham appeared before a judge to ask that his client be tried as a young offender. The hearing was set for January 18 to 21, 2000.
Boy Tried as Man
THE NEW YEAR held a surprise for those following the prosecution of Roddy Patten. On Wednesday, January 5, the court was scheduled to hear an application from defence counsel Charles Beckingham to have his trial moved to the provincial youth court. Instead, the suspect, now twenty-one, asked the judge to dismiss his application, clearing the way for trial in adult court. Judge Brian Klaver ordered the case to proceed directly to preliminary hearing on March 17.
With Patten’s identity now out in the open, I interviewed Dan Smith. Headlined “States Investigator Familiar with Long Hunts,” the piece I wrote focussed on the link between the Lee and States homicides, with Smith as the fulcrum. The investigator noted that it had taken just over three years to identify Roddy Patten as the suspect in the July 31, 1996, killing, “about a third as long as I put in on the Carolyn Lee investigation,” he said. I reminded readers of the timeline of the Lee case, since Smith himself compared the two timelines: “Cpl. Smith doggedly pursued the Carolyn Lee case for nine years after he inherited the file in the mid-1980s. Gurmit Singh Dhillon was convicted of the 1977 murder on Dec. 3, 1998, nearly 21 years after the 12-year-old was killed.”
Smith emphasized that investigators had relied heavily on cooperation from the public. Along with those 450-plus voluntary blood samples, police conducted over 3,400 interviews and followed up on over a thousand tips. Police also obtained a number of genetic samples via DNA warrant, he noted.
Two days after Patten was named as the suspect, Jessica’s father, Rob States, spoke to the Times. He expressed his confidence that police had the right man. “We’re glad that he’s going to be in adult court. We can see the light at the end of the tunnel now. We’re hoping that this will soon be over and we can find some closure. We want to get on with our lives.” States conceded that “closure” would never mean that their pain had gone away completely. Whatever life his family might “get on with” would never be the same as it was before July 31, 1996. “Make no mistake—our lives have been devastated by this jerk,” he said.
States also said that Patten’s decision to withdraw the application to hold the trial in youth court came as a surprise. The family had been prepared to attend the four-day application hearing. Now, their sights were set on the preliminary hearing in March. He conceded that a trial would be traumatic for his family, as they would hear all the evidence surrounding Jessica’s violent death. “But we’ll be there. I wouldn’t miss a minute of it, although I keep hoping he will plead guilty and spare us all the pain.”
The prosecutor, David Kidd, explained that an accused in a first-degree murder case could consent to go directly to trial in BC Supreme Court, where he would have the option of pleading guilty or not guilty. But either way, a preliminary hearing was still required in a provincial court. Kidd noted, however, that should the defendant indicate an intention to enter a guilty plea, there would be no need to present evidence at the prelim.
States said police had done a good job keeping the family advised on developments in the case. He summed up with an image that was to recur numerous times as the case proceeded. “Maybe, as a community, we can breathe just a little bit easier now. Our children will never again have the kind of freedom they would like, but now one boogeyman is gone, anyway.”
DNA TAKES THE NEXT STEP
The DNA Data Bank law, Section 487 of the Canadian Criminal Code, came into effect on July 1, 2000. On July 11, a twenty-one-year-old woman convicted of assaulting another woman with a beer bottle became the first Port Alberni resident to be ordered to submit to DNA sampling. That data would then be entered into the new National DNA Data Bank of violent
offenders.
Because assault causing bodily harm is classified as a “primary designated offence,” the Crown counsel for this landmark assault case, Steve Stirling, called on the judge to impose the new measure —submitting DNA to the new data bank—along with a ban on the possession of weapons, although he did not seek a jail sentence. The accused woman was defended by Roddy Patten’s defence counsel, Charles Beckingham, who raised an objection when Stirling asked Judge Michael Hubbard to have the accused “detained” so she could provide a genetic sample consisting of “one or more bodily substances.” In response, Judge Hubbard, noting that the wording of the law stated “may be detained” as opposed to “shall be detained,” ordered that detention not exceed two hours.
Following the court session, Beckingham pointed out that the law as enacted did not even provide for a voluntary appearance for sampling at the police station. On the judge’s decision to temper the ruling, he observed, “It’s not the judge’s place to repair faulty legislation.”
This case prompted Beckingham to speak at length on the defects inherent in Section 487, in preparation for his defence of Patten. “Now the state has taken a single mother, and she’s in there with all the other axe-murderers and rapists,” he observed. In contrast, Beckingham noted, police do not bring a suspect into custody for fingerprinting. “How big a state do you want to have?” he asked, noting that the country had just launched the long-gun registration program as well. Beckingham predicted that the campaign to fill up the DNA data bank would inevitably lead to abuses, both in the collection and in the interpretation of data. He bridled at the standard argument that innocent people have nothing to fear.
“That’s what the police always say—‘We don’t charge innocent people,’” Beckingham said. “That argument says, ‘Strip down naked in front of us. If you don’t want to, you must have something to hide.’ But once the bureaucracy has this information, what’s to stop them from using it for anything they like? The fact is, crime rates are dropping in Canada. There is no need to give the police more powers.”
THE TRIAL OF Roderick Patten Jr. was set to begin in Victoria Supreme Court in January 2001, almost a full year after his transfer to adult court on a charge of first-degree murder. On Thursday, January 4, a jury was selected, and the trial proper was scheduled to begin with a one-week voir dire beginning on Monday, January 8. Then the accused threw the entire process into the wastebasket.
On Monday, when the voir dire was scheduled to open, it was announced that on the previous Friday, Patten had hired Victoria lawyer Jim Heller to represent him. He had dismissed Beckingham following Thursday’s court appearance. Understandably, Heller immediately applied for an adjournment to give himself time to prepare for what was a complex case by any definition. Justice Allan Thackray adjourned the trial to June 4. Thackray had attempted to find an earlier court date, but the Crown and Heller had previously scheduled commitments over the next five months. The trial was set to last four weeks, with jury selection set for May 28. The judge further publicly admonished the accused for causing a costly delay to the proceedings.
Why Patten parted company with Beckingham is a matter of speculation. Beckingham acknowledged there had been “differences between himself and his client” but expressed his confidence that Patten wasn’t using the tactic to delay the trial.
Dan Smith believes that Patten had already planned to change the approach of his defence, and that would necessitate new counsel. At the time of the confession, which Beckingham attended, there was no mention of the future “I-was-too-stoned-to-know-what-I-was-doing” defence. But back in 1997, Tommy George, the Port Alberni man who killed the elderly George Evenson, had raised the issue of excessive drug consumption—successfully—as an extenuating factor in his crime. George was subsequently sentenced to one count of manslaughter. Dan Smith said there was every chance that Patten had picked up that information while in custody and decided it might work.
Had Patten suggested using the same tactic in his own defence, that would, arguably, have placed his defence counsel in the position of suborning perjury, that is, deliberately placing false testimony before the court. Beckingham had attended a full and explicit confession by his client. I asked Smith if, with this knowledge before him, Beckingham could still have mounted a defence based on reasonable doubt—or if he could have raised the too-stoned-to-be-criminally-responsible defence.
“Oh yes,” Smith said. “In my opinion, a lawyer is very much like a judge in that they are able to divorce themselves from evidence that is not admissible. Suppose a judge hears about a confession in a voir dire, and rules it inadmissible—he does not now excuse himself and get a new judge. He still hears the trial.”
Smith said lawyers are able to make the same mental shift. The presumption of innocence is the foundation of the justice system as we know it. “They may be well aware of the guilt of their client, but they still provide an effective defence,” he said. “Hopefully, in the vast majority of cases, the Crown is bringing the guilty party to trial. It is not about whether the accused is guilty. The vast majority of the time, it’s about ‘How did the police catch him?’”
JURY SELECTION TOOK place on May 28, 2001, in Victoria Supreme Court. In an echo of the Gurmit Dhillon trial, jurors were asked if they could judge the case impartially given the fact that the accused had Indigenous ancestry while the victim was Caucasian. But the main concern, both for the prosecution and the defence, was the extensive pre-trial publicity as the investigation, then the prosecution, had dragged on for nearly five years since the killing across from the ball field in July 1996. In both cases, jurors satisfied both the Crown and the defence that they could render an impartial judgment.
For the Patten trial, Shelley Arnfield served as both file coordinator and exhibit manager and would be a critical player in a bizarre drama that later ensued when the defence was unable to produce a key expert witness. But even at the beginning, her participation was affected by the problems with the case, as when the five-month adjournment caused a major disruption.
“I was there for the whole trial,” she said. “As file coordinator, if they needed something, I was the one who knew where, in the file, to find that thing. This investigation filled four 4-drawer filing cabinets. So, when he was supposed to go to trial in January, we crammed everything into two filing cabinets—there was certain stuff we could leave behind, because it wasn’t germane to anything—rented a van, and [Constable] Terry Horrocks and I hauled it down to Victoria to the Crown office, where it stayed until Roddy fired his lawyer. Then Terry and I went back to Victoria and carted these filing cabinets back.” Arnfield and Horrocks accompanied Dan Smith, joined by Serge Cashulette, who would testify on the discovery of the body and the evidence collected at the crime scene.
Arnfield said there had been some squad-room scepticism about the need for two officers and a rented van to haul a file to Victoria. So when she and Horrocks had to haul the same load back for the trial, she asked a couple of members for some assistance. “When they saw the extent of it, they were dumfounded—they’d had no idea how much was involved. Terry and I were not going down to Victoria with an accordion file under one arm.”
VOIR DIRE TOOK place from June 5 through 8, with the trial proper opening before the jury on Monday, June 11. The Alberni Valley Times booked me a motel room for two nights so I could catch the opening of the trial.
As a reporter for one of the few remaining afternoon dailies, I had the opportunity to get a jump on the competition and, importantly, file the first bylined story of the day to the Canadian Press. That was going to mean doing some “old school” reporting. Years later, I would be approved to bring a laptop to court in Port Alberni and write stories in real time, but in 2001, electronic recording devices were still prohibited. So like an old-time reporter out of a period movie, I jotted notes down on one legal pad while composing copy on another. Then, during breaks, I’d rush to the bank of payphones down the hall and bark out a more or les
s comprehensible story to someone on the other end of the line.
The mood was especially tense when I entered the courthouse prior to the trial opening, looking for potential interviews. I spotted Constable Serge Cashulette in the hallway, glaring about in his customary way. I hadn’t seen him in months, so I walked up to greet him. Cashulette looked at the brand-new Leatherman multi-tool on my belt. “Dat’s a weapon!” he rasped. “Get rid of it!” I ran back out to my car and stashed it.
Dan Smith said he had to meet with the States family before the trial opened. He later explained why: “The most emotional moment for me was when I had to explain to Jessica’s parents and extended family members who were also there, exactly how their daughter died. Because much of that was ‘holdback’ evidence, and so they were never informed, and couldn’t be informed, of a lot of the details. They were now going to hear it in trial, so rather than hearing it for the first time in a courtroom, in cold, clinical terms, it might be best to hear it from someone who was involved in the investigation. That fell to me, being the prime investigator.” That meeting took place in a witness room at the courthouse in Victoria.
“I gathered everybody around them and explained that what they were about to hear was going to be pretty tough, but here’s what happened. I said, ‘If it’s any comfort, I can tell you that, melding the evidence that Patten gave me with the results from the autopsy, there was a lot that happened to her, but she was almost certainly unconscious while it was happening.’ It was very emotional and very tough.”
The trial began with Justice Thackray instructing the jury that Patten was to be presumed innocent. “He at no time has to prove his innocence. The onus of displacing innocence is on the Crown,” Thackray said.
The Bulldog and the Helix Page 18