4 ways Luka Magnotta’s trial could be a challenge for court

Jury selection starts today in the Luka Magnotta case, with the court facing several challenges when it comes to ensuring he receives a fair trial.

The trial itself is expected to begin Sept. 22 in Montreal.

Magnotta faces five charges:

1. First degree murder in connection with the death of 33-year-old Jun Lin in May 2012.
2. Improperly or indecently interfering with or offering an indignity to Lin's human remains.
3. Publication of obscene material.
4. Mailing obscene material.
5. Criminal harassment of Prime Minister Stephen Harper and members of Parliament.

Selecting the jury

Jury selection poses the first challenge.

The case received extensive and sensational coverage in 2012, so much so that Magnotta was named Canadian newsmaker of the year by the Canadian Press.

A jury is supposed to decide the case before them based on the evidence in court, not preconceived views. Of course, this can be a problem with any high-profile trial.

One tool available during jury selection is what's called 'challenge for cause.'

Lawyers ask the potential jurors about their understanding of the nature of the case, based on media reporting and other sources.

"You can ask them if they've formed an opinion about the guilt or innocence of the accused that would cause them not to be impartial, and therefore they cannot serve on the jury," says prominent criminal trial lawyer Michael Lacy.

Lacy is with the Toronto-based legal firm Greenspan and Partners LLP. CBC News spoke to Lacy while he was in Montreal, where he's involved in another trial.

He says that like any sensational case, "There's challenges here to getting a fair trial, obviously, but those challenges are met through various means the criminal justice system has developed to address those types of issues."

Language issues

Language may be another challenge in this case. 

Magnotta, who was born in the Toronto suburb of Scarborough 32 years ago, has requested to be tried in English, as is his right under the Criminal Code.

But in this case his jurors are required to be bilingual because evidence will be presented in both English and French, reducing the number of potential candidates. That shouldn't be a problem in Montreal, which has the largest potential pool of bilingual jurors in the country. Fourteen jurors will be chosen, but just 12 will sit on the jury.

However, before a juror is selected, the court will need to determine that the juror can "track and follow a criminal trial in either language," Lacy says.

When a witness testifies in French, Magnotta will be provided with interpretation in English. For official purposes, it will be the English translation, not the original testimony, that matters.

Earlier this year, testimony was also gathered in France and Germany, so the trial may require additional translation.

Evidence may be graphic, obscene

The jury may also be presented with graphic and obscene evidence during the trial. 

That evidence may be hard for some jurors to stomach. This can pose problems in terms of a fair trial, since there's the potential of prejudicing jurors against the accused because of what defence lawyer Lacy calls "that sort of visceral reaction to graphic evidence."

"The Crown doesn't just get to show horrible autopsy photos which may have the effect of inflaming the jury," he explains.

The court can control the way evidence is introduced. For example, in a case that involves severed body parts, an issue is whether it’s necessary or acceptable to show them in photographs to the jury. 

Another technique, Lacy explains, is for the Crown and the defence to present the jury with an agreed statement of fact.

As a defence lawyer he wants to ensure jurors aren’t "being inflamed by graphic or sensational allegations."

Publication bans

Publication bans may be another challenge in this case.

Since Magnotta has opted for a jury trial, expect publication bans covering any evidence heard in the absence of the jury, including during pre-trial motions.

Although debating bans may slow the trial down — it's expected to last about six weeks — Lacy does not anticipate this will be a problem. 

There have also been defence motions to limit the scope of coverage or forbid the public and media from attending proceedings altogether, but those attempts failed.

Jun Lin's family wants the court to ensure some exhibits are not made public in any way. 

"Those exhibits should not be distributed or published or reproduced because they, in our view, represent obscene materials," says Benoit Lapointe, the family's lawyer. "We don't want this material to ever be made available to the public or ever be made accessible."

Mark Bantey, a lawyer representing several media organizations, told Canadian Press that his clients are in agreement with the family on some exhibits.

"Other exhibits are not obscene," Bantey said. "They may be shocking, but they are not obscene and they should be made public."

The judge in the case, Quebec Superior Court Justice Guy Cournoyer, has yet to rule on the matter.

Lacy says that granting the family's complete request "would be highly unusual."

He notes that the Supreme Court of Canada "has been pretty clear that the open court principle is an an important one."

From his perspective as a defence lawyer, here's how Lacy sums up the task: "Any case that received significant publicity, any case that involves sensational allegations, the real challenge for the defence is trying to have the jury adjudicate the case on the basis of the evidence that's actually adduced and the legal instructions that the trial judge gives.

"If everyone does their job, hopefully justice will be served and he will get a fair trial."