Court File and Parties

COURT FILE NO.: CR-18-1310 DATE: 05 01 2020

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Respondent C. Nadler and A. Cornelius for the Crown Respondent

- and –

THULANI CHIZANGA and SHAMAR MEREDITH Applicants D. Sarikaya for the Applicant Thulani Chizanga J. Giuliana for the Applicant Shamar Meredith

HEARD: February 13. 2020

MISTRIAL RULING

D.E HARRIS J.

[1] The offenders Thulani Chizanga and Shamar Meredith, charged with first degree murder, were convicted by a jury of second-degree murder in the killing of Kamar McIntosh. On the day originally scheduled for the imposition of sentence, both brought an application for a mistrial based on the Court of Appeal’s decision in R. v. Chouhan, 2020 ONCA 40, 160 W.C.B. (2d) 551. For the following reasons, the application for a mistrial is denied.

[2] The decision in Chouhan held that the former provisions of the Criminal Code with respect to peremptory challenges remained operative at the time of jury selection in this case. The new provisions rescinding the peremptory challenge provisions are prospective only.

[3] At trial, counsel did not ask to be granted the peremptory challenges and agreed that the new provisions ought to be followed. Consequently, there were no peremptory challenges of prospective jurors. I accept that in all probability, it was reversible error not to follow the old law and to afford counsel peremptory challenges: see R. v. MacMillan, 2020 ONCA 141 at para. 6.

[4] As a consequence of what appears on its face to be fatal error, the applicants request a mistrial and ask that a new trial on first degree murder be scheduled promptly. They point to the pragmatics of the situation. A mistrial is the easiest and quickest way to get the matter moving towards a new trial. I note that counsels’ submissions were made before COVID-19 descended on the world.

[5] Counsel are probably right that pragmatics favour a mistrial. However, there are some caveats. The most significant is that the Crown has applied to the Supreme Court for leave to appeal from the Court of Appeal’s decision in Chouhan and has asked the leave to be expedited: 2020 CarswellOnt 3054. A decision is imminent. In addition, the Supreme Court has now granted leave in Her Majesty the Queen in Right of Canada v. Chiheb Esseghaier, et al.. The Court of Appeal found a fatal flaw in the jury selection process in that case, albeit a different problem than the failure to grant peremptory challenges present in this case. Nonetheless, it is not impossible to imagine that the Court might alter the present parsimonious approach to the procedural curative proviso in Section 686(1)(b)(iv) of the Criminal Code. There is a slim possibility that such a change would have some impact on an appeal in the matter at hand.

[6] If a mistrial were declared now in the case at hand and the Supreme Court were later to disagree with the Court of Appeal in Chouhan, that would be exceedingly unfortunate. Conceding that the pragmatics, however, lean towards a new trial being inescapable in this case, nonetheless, in my view the law prohibits the declaration of a mistrial in these circumstances. While it is true, as counsel argued, that this precise situation is unprecedented, the law in Canada is quite clear that a mistrial after verdict cannot be declared based on an error of law committed during the trial. Remedial steps to rectify any injustice are the purview of the Court of Appeal, not the trial judge.

[7] In R. v. Henderson, [2004] O.J. No. 4157, 123 C.R.R. (2d) 297 (C.A.), Justice Feldman stated the long-observed rule that after a jury verdict is delivered, it is “sacrosanct” and that a trial judge’s jurisdiction to order a mistrial after verdict is “extremely limited.” (see paras. 29-30).

[8] The delivery of a verdict by the jury is almost inevitably a point of no return. There are several exceptions but they only serve to highlight that this case must follow the general rule. One exception is where the jury does not render the verdict it intended. A second is if there are questions raised concerning the integrity of the deliberative process leading to the verdict. In both these circumstances, the trial judge having immediate authority and control over the jury, has a better vantage point than does the Court of Appeal. A trial judge can conduct an immediate inquiry into any impropriety with respect to deliberations or the rendering of the verdict.

[9] In some jurisdictions in the United States, the trial judge has a limited discretion to void a jury guilty verdict if it is found to be clearly unreasonable. Our law is opposed to a trial judge’s after-the-fact interference with a jury verdict.

[10] I disagree with R. v. Azzi 2020 CarswellOnt 1595, 2020 ONSC 848 at paras. 8-9 where it was held in identical circumstances that a mistrial could have been declared for failure to grant peremptory challenges. Ultimately a mistrial was not declared in Azzi as the trial judge exercised his discretion to refuse the request.

[11] The reasons supporting the decision in Azzi that a mistrial could be declared were: (i.) A jurisdictional error is different in kind than a regular error of law. The trial was void ab initio; and (ii.) The Supreme Court of Canada decision in R. v. Burke, 2002 SCC 55, [2002] S.C.J. No. 56 at paras. 74-75 authorizes a mistrial in circumstances like this one.

[12] With respect to i. I agree that what we have here is a jurisdictional error, an error in the jury selection process. The jury was not properly constituted.

[13] However, there is no authority either directly or in obiter supporting a trial judge declaring a mistrial post-verdict to remedy an error of law. In my view, the nature of the error as jurisdictional and committed in the process of jury selection makes no difference. In Canadian criminal procedure, once a verdict is rendered, alleged errors committed by a trial judge are evaluated by the Court of Appeal to decide whether there was error and whether there was harm caused by the error. It is not for the trial judge to sit in judgment of his or her own conduct.

[14] Nor does the strength of the defendants’ appeal alter its legal status. The fact is, a trial judge lacks jurisdiction to vacate a jury verdict for any issue not associated with the deliberative process or delivery of the verdict.

[15] Moving on to the second reason for a mistrial cited in Azzi, as quoted in that case at para. 9, it was held in Burke at para. 74 that,

There are broad common law powers to declare a mistrial. Mistrials have been ordered or considered as a potential solution in a range of situations.

[16] Despite this very broad statement, the Supreme Court continued on in the same paragraph to give concrete examples of situations in which mistrials were declared. None of them bear any resemblance to the case at hand. Only one was post-verdict. That was a case of a bifurcated trial where a verdict was rendered on the first stage of guilt or innocence but the jury could not be unanimous on the second question of criminal responsibility. There is no analogy between that example and the case at hand.

[17] In conclusion, the exceptions to the prohibition against declaring a mistrial after the delivery of a verdict do not apply as there was no ambiguity or difficulty in recording the jury verdict nor has there been any doubt cast on the integrity of the verdict. The proper division of labour, now that the verdict has been rendered, is for the appeal court to adjudicate this case in the usual course as they would any alleged legal error or miscarriage of justice occurring at trial.

[18] For these reasons, the application for a mistrial is dismissed. The imposition of sentence on the second-degree murder convictions will take place on a date to be determined in the future.

D.E HARRIS J. Released: May 1, 2020