Man convicted of manslaughter seeks mistrial
Judge in Goodpipe trial was Crown in prior robbery case
A 35-year-old man is looking for a mistrial even though he was already convicted by a Regina jury of manslaughter in the shooting death of Andre Joseph Aubertin — and facing the possibility of a dangerous-offender hearing.
At the heart of the request by Elwin Michael Goodpipe is an unusual situation involving himself, his defence lawyer, the judge and a 15-year-old robbery sentencing.
Goodpipe was found guilty at the beginning of May, the jury having determined he played a role in a botched robbery from March 29, 2016, in which his accomplice pulled out a shotgun, which then went off, killing Aubertin.
Following the verdict, prosecutor Mitchell Miller advised the court the Crown would be considering whether to launch dangerous-offender (DO) proceedings against Goodpipe. Among violent convictions on his criminal record, Goodpipe has a previous manslaughter for his role in the 2004 killing of Wayne Gerald Friday. As in the Aubertin case, Goodpipe was not the one to wield the gun used in the man’s death.
But, as Miller was digging into Goodpipe’s past convictions for the purpose of determining whether to launch DO proceedings, a potential problem cropped up.
Having looked into details of a 2003 robbery sentencing, Miller noticed the Crown prosecutor on that matter was now-Justice Jeff Kalmakoff — the Court of Queen’s Bench judge who presided over Goodpipe’s 2018 manslaughter trial.
Miller brought the matter to the attention of the court and defence lawyer Mervyn Shaw who, as it happened, had also acted as Goodpipe’s defence counsel on the 2003 matter. Court heard Kalmakoff and Shaw had no memory of the 2003 proceedings, nor had Goodpipe recalled Kalmakoff having been involved as prosecutor.
But, on Friday, Shaw nonetheless argued for a mistrial on the Aubertin manslaughter case, claiming that, while there is no evidence of actual bias on Kalmakoff ’s part, there is a potential for “unconscious” bias.
Whether or not any actual or unconscious bias exists, Shaw argued, the optics of the matter are also important. Shaw said declaring a mistrial and ordering a new trial is the only way justice “can be seen to be done” given the circumstances.
While it’s not uncommon for judges to recuse themselves when their previous work as Crown or defence counsel had them involved with a specific accused person, Miller argued case law suggests that isn’t a necessary move once enough time has passed. In this case, he argued the 15-year gap between the two cases is far more than enough to remove any potential bias or the perception of it.
Miller urged Kalmakoff to continue to sit on the Goodpipe sentencing, rather than declare a mistrial or recuse himself at this stage.
Miller noted Shaw had agreed Kalmakoff’s 2003 submissions on the robbery were “balanced, fair and scrupulously honest,” and Miller questioned how there could be any evidence of bias at the 2018 trial when none of the parties could even remember the 2003 case.
Kalmakoff set the matter over to June 26 to decide how to proceed. The Crown is also expected to decide by then whether it will be proceeding with a DO application.