Judge to decide if accused shooter will get one jury to try both fitness, criminality

COVID-19 is further complicating the Matthew Vincent Raymond trial.

Raymond is charged in the shooting deaths of Const. Sara Burns, Const. Robb Costello, and Donnie Robichaud and Bobbie Lee Wright. They were killed on the morning of Aug. 10, 2018, at an apartment building on Brookside Drive on Fredericton's north side. 

Raymond's lawyer, Matthew Gorham, wants only one jury for the upcoming fitness hearing and criminal trial.  But the judge and Crown say that's too risky, considering the unstable nature of life during a pandemic.

Under the law, Gorham is permitted to ask for one jury to find Raymond fit or unfit in August, and then continue to be on duty if the criminal trial goes ahead, which is tentatively scheduled for late September

But Justice Fred Ferguson said having one jury is "reckless."

"I'm filling with anxiety here," Ferguson said. "This is an extremely volatile situation."

Crown prosecutor Claude Haché argued because of COVID-19, people are more likely to have legitimate reasons to drop out of jury duty once they're selected. He made the example of people who have lost their jobs and need to be job hunting, or people who don't feel safe being in an indoor space with others. 

"People will come but they will be scared," Haché said.

And because the two events are five weeks apart, losing jury members is more likely, Ferguson said, whether to illness or personal reasons. There's also the possibility the Fredericton area could revert back to the orange or red phase of recovery, he said.

The Crown, judge, media and others convened in a makeshift courtroom at the Fredericton Convention Centre. Fredericton's Court of Queens Bench moved there to have more space to accommodate physical distancing requirements.

Raymond appeared by phone from the Restigouche Hospital Centre, where he's been for the past few months.

Ferguson said if the case gets to the criminal trial and there are less than 12 jurors in the box, whatever decision they make could be overturned on appeal.

The problem is, Ferguson said, there is no judicial framework that can get in the way of the one-jury option.

"Look, you carry all the cards here. Legally, you do. Common sensically? Undecided," Ferguson told Gorham.

Gorham said he wants to have one jury to avoid delays. Having a quick turnaround from fitness hearing to criminal trial will minimize the risk of Raymond losing fitness before he can face his charges, he said.

"I don't think that there's any downside to what we're suggesting," he said. "It seems to me that Mr. Raymond's interests are aligned with the public interest at this time."

Raymond was previously found unfit to stand trial by a jury. This means his mental illness was getting in the way of his ability to communicate with his lawyer and build a defence. Fitness to stand trial is different from criminal responsibility, which deals with the accused's state of mind during an alleged crime.

After being found unfit, Raymond was put on antipsychotic medication against his will for 60 days. This means before a criminal trial can begin, he must be found fit by a different jury.

Before this could happen, Gorham said Raymond lost fitness again and was not communicating properly with him.

Last month, a review board again prescribed mandatory medication, which Raymond will continue to be given until two weeks from now, when his medication will be reviewed.

Gorham said Raymond's fitness waxes and wanes and the sooner the criminal trial begins, the better for everyone involved.

Ferguson asked both sides to continue their talks, and he'll make a final decision about the jury next week.