COURT OF APPEAL FOR ONTARIO

DATE: 20001123

DOCKET: C28686

McMURTRY C.J.O., LASKIN J.A. and BLAIR R.S.J. (ad hoc)

BETWEEN:

HER MAJESTY THE QUEEN

Carol A. Brewer and Grace Choi, for the Respondent

Respondent

• and -

ZABAI AFGHANZADA

Nicholas A. Xynnis, for the Appellant

Appellant

HEARD: October 20, 2000

On appeal from a conviction for sexual assault by a jury before Justice Rose T. Boyko at Whitby on July 11, 1997, and sentence on September 12, 1997.

R.A. BLAIR R.S.J. (ad hoc):

Overview

[1] The Appellant raised the following five grounds of appeal against conviction in argument:

a) that the trial judge’s charge to the jury on reasonable doubt was inadequate, in view of the recent judgment of the Supreme Court of Canada in Regina v. Starr 2000 SCC 40, [2000] S.C.J. 40;

b) that the appellant was denied the right to a fair and impartial trial, or the appearance thereof, as a result of the trial judge’s failure to conduct a proper inquiry into allegations that there had been conversations during the trial between members of the jury and the officer-in-charge of the prosecution;

c) that the trial judge erred in dismissing the appellants “Corbett” application and in permitting evidence to be led respecting the appellant’s criminal record;

d) that the trial judge erred in denying the appellant an adjournment at the outset of trial, to permit the appellant to obtain potential expert evidence contradicting the complainant’s version of the events; and,

e) that in finding the appellant guilty the jury reached an unreasonable verdict.

[2] The appellant also seeks leave to appeal and, if leave be granted, appeals the sentence of two years imprisonment imposed by the trial judge.

[3] On the appeal against conviction we did not call upon the Respondent with respect to grounds (d) and (e) above. Further, on the view I take of the case, it is only necessary for us to deal with ground (b) in order to dispose of the appeal.

[4] With respect to the trial judge, it is my opinion that a new trial must be ordered because of the incomplete and inadequate inquiry conducted into the allegation that there had been a conversation between a member or members of the jury and the officer-in-charge of the case during the course of the trial.

Analysis

[5] On the morning of the fourth day of trial, counsel met with the trial judge in Chambers to discuss three matters that defence counsel had raised as the basis for a potential mistrial motion. One of these concerned possible communications between members of the jury and the officer-in-charge of the investigation. Defence counsel indicated to the trial judge he had been told by a defence witness that the witness had observed a conversation between jurors and the officer, Detective Haass, in the public area during a break in the trial the previous day.

[6] Defence counsel’s interest in the possible conversation was related to his concern that the jurors may have thought he had been improperly reviewing documents with the witness, Mr. Barekzai, when in fact all he had been doing was showing Mr. Barekzai an affidavit Mr. Barekzai himself had previously provided. Defence counsel’s concern developed when Det. Haass subsequently asked Mr. Barekzai if defence counsel had shown him anyone else’s affidavit, and when Crown counsel made a similar inquiry of defence counsel himself.

[7] The trial judge quite properly embarked upon a inquiry to determine what, if anything, had happened.

[8] Mr. Barekzai was called to testify on this issue. He was questioned by both defence counsel and the trial judge. He was notably nervous. In response to traditional non-leading “examination in chief” questions from defence counsel, his testimony did not support the version of events that he had apparently communicated earlier, even after several questions of the “anything else?” nature. At several points where defence counsel’s questions threatened to turn leading in nature, the trial judge quickly interjected and either prevented the question from being asked or diverted the questioning to another area. Finally, the trial judge asked defence counsel if he had “a last question”, and the following exchange took place between defence counsel and Mr. Barekzai:

Q. Fred, it seems to me that you are either extremely nervous or forgetful and I’m going to ask you if you remember what you complained to me about at the end of the day yesterday.

A. Yes, that I told you about what happened with the jurors and I think a juror told Det. Haass of what happened.

[9] There then followed an exchange between the trial judge and defence counsel about the tone of voice counsel was using, and the trial judge had the court reporter read back the last answer. The examination by defence counsel then continued:

Q. Did you see the jurors speak to Det. Haass?

A. In the afternoon and in the morning, like I said, as soon as that everybody was called into the courtroom. I saw everybody gathered up there and they were walking into the courtroom.

Q. So you saw Det. Haass in the morning?

A. Yes. Yes.

Q. It’s clear to you now?

A. Yes. I was walking back and forth in the lobby and that when everyone was called into the courtroom. I saw everyone there and I just remember that – you know how I remember because the day that he came to my house to take my affidavit he was wearing the same suit and I noticed him

Q. So you know what Det. Haass looks like …

A. Oh, yeah.

Q. … from a prior occasion?

A. Oh, yes.

Q. And you know that that was Det. Haass that was being approached by a juror?

A. Yes, sir.

MR. HILL (Crown Counsel):Objection, Your Honour. That wasn’t the witness’s evidence at all before just this moment when my friend lead his own witness and the witness has never said that jurors approached Det. Haass. He just never gave that evidence.

MR. COSTA (Defence Counsel): Well, then if that’s what my friend thinks, perhaps I’ll put the question to him. I frankly don’t see how that could be but …

MR. COSTA: Fred ..

THE COURT: Just a moment. All right. I’m going to ask you to step down. Do you have any questions of this witness, Mr. Hill?

MR. HILL: No, thank you.

THE COURT: I’m going to ask you to step down, sir, and if you would just go …

THE WITNESS: Thank you.

THE COURT: … outside of the courtroom.

REGISTRAR: The witness has left the courtroom, Your Honour.

[10] There was no further testimony called on this issue. The trial judge proceeded to put on the record an outline of what she and counsel had discussed in Chambers that morning about this issue and two other matters that defence counsel had raised as supporting a potential motion for a mistrial.[^1] There was no dispute as to the accuracy of what the trial judge recorded. However, in responding, defence counsel made the following request:

MR. COSTA: True, this is the defence’s first opportunity to speak on the record with respect to the three complaints raised. Your Honour wishes me to address the third and effectively in the middle of you inquiry I suspect. Defence wants to proceed with its mistrial motion and I respectfully submit that Mr. Barekzai’s testimony is incomplete; that he was effectively stopped and asked to step down from the witness area once he recollected that in the morning he in fact witnessed Det. Haass speak with a juror. (italics added)

[11] There followed further submissions by counsel about a potential mistrial motion. Immediately prior to the luncheon recess, the following exchange took place:

MR. COSTA: Am I correct in exiting at this time with the impression that the matter concerning Det. Haass is not quite resolved?

THE COURT: I have not made a final determination of that.

MR. COSTA: Thank you, Your Honour.

THE COURT: And now I have to ask you. I take it you are asking me to continue with that …

MR COSTA: I am.

THE COURT: … inquiry.

MR. COSTA: Yes, I am.

THE COURT: All right. Is there anything further then? Can we break for lunch?

[12] Immediately upon returning from the luncheon recess, and without any further submissions or inquiry, the trial judge gave her ruling on this issue. The substance of her ruling respecting the testimony of the witness was this:

. . . Defence counsel requested a mistrial be granted based on allegations of communications between a juror and Det. Haass. Mr. Barekzai, who was present in the court house expecting to testify on behalf of the accused is the person who allegedly witnessed a juror approaching Det. Haass on or about ten a.m. yesterday morning or somewhere thereafter, but in any event in the morning.

He testified before me clearly that he did not see Det. Haass before two o’clock in the afternoon. I had commenced questioning this witness after I observed Mr. Costa putting a leading question to him. Having placed a few questions to him myself, Mr. Costa then resumed questioning this witness with his first question being as follows: “Did you see jurors speak to Det. Haass?”. It was at this point that Mr. Barekzai suddenly recalled seeing Det. Haass this morning.

At this point, I terminated the inquiry. I found his testimony to be clear at first that he did not see Det. Haass in the morning and his recollection was clearly prompted by the leading question of Mr. Costa. Having tainted his answer by a leading question, I saw no point in continuing with this inquiry.

[13] There was some evidence from Mr. Barekzai that he thought a juror had spoken with Det. Haass. In my opinion, the interests of justice, and the appearance of justice, called for a less abrupt end to the consideration of this serious question.

[14] Juries must be kept completely free from the taint of any outside influence, or from the appearance of any such contamination. As noted by the British Columbia Court of Appeal, in R. v. Masuda (1953), 1953 447 (BC CA), 106 C.C.C. 122[^2], at pp. 123-124, where such circumstances leave “a taint of suspicion of prejudice to the fair trial of the accused”, two essentials of justice are violated:

The one is that the jury must be kept completely free from any opportunity of communication during the trial, except under the most exceptional circumstances calling for a direction from the Court; and, secondly, that nothing must occur during the trial of a case from which a suspicion may arise that any taint attaches to the proper and meticulous fairness which must always surround the administration of public justice . . .

[15] Both the fact of a fair trial and the appearance of a fair trial are essential to the administration of justice. In my view, the inquiry into the incident which was alleged to have occurred here was not adequate to remove that “taint of suspicion of prejudice to the fair trial of the accused” and thus the taint of prejudice to the public administration of justice.

[16] Defence counsel and the appellant left the courtroom for the luncheon recess with the clear understanding from the trial judge that the inquiry would continue. Instead, the trial judge gave her ruling immediately after court resumed, without calling upon defence counsel for further submissions.

[17] Moreover, I do not consider an inquiry of this nature conducted during the course of a trial to be an exercise based strictly on the adversarial model, as is the trial itself. Rather, as Crown counsel pointed out, the inquiry is a summary and inquisitorial type of procedure which the court carries out. While it was defence counsel who took the initiative in asking the questions, the witness in this context was not “his” witness in the traditional sense. Although the nature of the question may well affect the weight to be attached to the answer given, a certain degree of latitude may be afforded a witness, and the questioner, in such circumstances – particularly where, as here, the witness was clearly nervous and uncomfortable in the setting.

[18] In my opinion, the witness should have been given the opportunity to provide an explanation for the inconsistency in his testimony. Defence counsel asked for that accommodation. At the very least, Detective Haass should have been called to testify as to his version of what did or did not occur. This did not happen.

[19] It may well be, at the end of the exercise, that the trial judge would have come to the same conclusion she reached in her ruling. There may not have been a discussion between the officer and a juror or jurors about the case; or, if there had been, the nature of the discussion may have been completely benign and would not have compromised the fairness of the trial. Given the incomplete and inconclusive nature of the inquiry, however, it cannot be said with a sufficient degree of comfort that such was the case. An appearance of unfairness remains.

Disposition

[20] Accordingly, I would allow the appeal as to conviction on this ground, and order a new trial. In view of this disposition, it is not necessary to deal with the other grounds of appeal upon which full argument was made.

Released: NOV 23 2000

Signed: “R.A. Blair R.S.J. (ad hoc)

RRM

“I agree R.R. McMurtry C.J.O.” “I agree John Laskin J.A.”

[^1]: The other two issues involved (a) late disclosure by the Crown of the appellant’s prior record, and (b) a complaint that Crown counsel had further exacerbated a situation concerning an unhappy defence witness whose testimony had been delayed and who had been bound over to the next day, by suggesting that it was defence counsel’s fault rather than simply indicating the judge had ordered him to appear.

[^2]: Cited with approval by this Court in R. v. Cameron (1991), 1991 7182 (ON CA), 64 C.C.C. (3d) 96, per Labrosse J.A., at pp. 101-102, and in R. v. Hertrich (1982), 1982 3307 (ON CA), 67 C.C.C. (2d) 510 (Ont. C.A.).