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Statement by Michael Lazar, Lawyer for Oxana Berent re: Issuance of a Public Interest Warrant for Oxana, Maxim and Alexander Berent

by Michael Lazar, posted here October 16,2020

On October 2, 2020, Judge Krahn of the Manitoba Provincial
Court issued a Public Interest Warrant, which was endorsed, for Oxana,
Maxim and Alexander Berent. The Berents were due to begin a three week
trial on October 13, 2020 on a charge of Public Mischief for allegedly
faking an attack on Oxana Berent and vandalism of their restaurant, The
Bermax Cafe, which included anti-semitic  spray painting. The Berents
have always maintained their innocence of the charge.

In the aftermath of the events (which took place in April 2019) there
was a great deal of publicity which exposed the Berent family to
ostracism in the community. Compounded by financial difficulties, the Berents
lost both their business and their family home. They had no
community support in Winnipeg, but were offered support by the Chabad
movement in Los Angeles. They advised the court of their intention to
relocate to California, and were told that they were free to go so long
as they maintained contact with their defence lawyers and returned for
their trial. They relocated to California in January 2020.

The subsequent arrival of the COVID pandemic raised difficult procedural
issues in the case. Manitoba currently requires people arriving from the
United States and elsewhere outside of Western Canada  to quarantine for
two weeks upon their arrival in Manitoba. This means that the Berents
would have to return to Manitoba at least two weeks before the scheduled
trial dates and quarantine here for two weeks. They had nowhere to do
that, and do not have the means to quarantine in a hotel for two weeks.

The Berents instructed their lawyers to apply to the court for
permission to attend their trial by video-conference (section 650(2)(b)
of the Criminal Code). This application was heard on September 25, 2020,
and denied by the court due to the expected length and complexity of the
trial. The Berents then instructed their lawyers to apply for an
adjournment of the trial and to appeal the ruling regarding the
video-conferencing. In their application for the adjournment, the Berents
indicated that they were prepared to waive their Charter rights
regarding unreasonable delay if they were successful in getting the
adjournment. The application to adjourn the trial was scheduled to be
heard on October 2, 2020. In the interim, though, discussions were held
between the crown attorney and the defence lawyers, and an agreement was
reached where the crown would seek a Public Interest warrant, endorsed,
and would undertake not to charge the Berents with a breach of their
current bail terms for failing to attend court. The defence, in turn,
agreed to consent to the warrant, withdraw the application for the
adjournment, and drop the appeal of the video-conference ruling.

A regular warrant, unendorsed, means that upon execution of the warrant,
the accused would be taken in to custody, and kept in custody unless and
until a judge granted them a new bail (which the judge might not do). A
Public Interest warrant is issued when there are extenuating
circumstances that suggest that the accuseds may not be completely at
fault for their non-appearance in court. When the warrant is endorsed
(as opposed to unendorsed) it means that the accuseds can turn
themselves in to police, and they may be released again on a new bail
without having to be held in custody for a bail application in court.
This was seen as a better mechanism than simply adjourning the trial, as
an adjournment would have to be to a specific date (for jurisdictional
reasons), and there would be no guarantee that the COVID pandemic would
be resolved by whatever date was selected.

The endorsed Public Interest warrant was issued in court on October 2,
2020, with the Berents attending court via teleconference (as they had
on September 25, 2020 for the video-conference application). At the same
hearing, the application for adjournment was withdrawn. The appeal of
the video-conference ruling was dropped on October 8, 2020.

The intent here (and this was expressed on the record by the crown
attorney and confirmed by the defence lawyers) was that the Berents
could return to Winnipeg and report to the police once COVID has receded
and the quarantine requirements were removed. They would be released on
a new bail and new trial dates would be scheduled. This was a creative
and cooperative effort between crown and defence to deal with one of the
unique challenges raised by the pandemic situation.

Michael Lazar is the lawyer for Oxana Berent

Phillip Caramer is the lawyer for Maxim Berent

Brett Gladstone is the lawyer for Alexander Berent

 
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Rhonda Spivak, Editor

Publisher: Spivak's Jewish Review Ltd.


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