COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Sarrazin, 2016 ONCA 714
DATE: 20160929
DOCKET: C57000
Gillese, Rouleau and Brown JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Robert Sarrazin
Appellant
Russell Silverstein and Ingrid Grant, for the appellant
Michael Bernstein, for the respondent
Heard: September 12, 2016
On appeal from the conviction entered on February 22, 2013, by Justice Hugh R. McLean of the Superior Court of Justice, sitting with a jury.
Gillese J.A.:
[1] On February 22, 2013, following a trial by jury, Robert Sarrazin (the “appellant”) was convicted of second degree murder for having killed Apaid Noël. He was sentenced to life in prison with no parole eligibility for 18 years.
[2] This was the appellant’s third trial for Apaid Noël’s murder. He had been convicted in both of the two prior trials but had successfully appealed those convictions.[^1]
[3] He appeals against conviction and asks for a stay of proceedings, on the basis that a fourth trial would constitute an abuse of process and violate s. 7 of the Charter.
[4] For the reasons that follow, I would dismiss the appeal.
BACKGROUND IN BRIEF
[5] Apaid Noël was 21 years old on February 19, 1998. In the early morning hours, he was with his brother Aschley Noël.[^2] Aschley was five years older than Apaid and lived in Montreal but had gone to Ottawa to help his brother promote an upcoming March break party.
[6] The two brothers were standing outside an Ottawa night club distributing flyers advertising the party. The appellant, Darlind Jean and Wolfson Cétoute (together, the “three men”) were in the nightclub.
[7] The appellant and Mr. Jean were long-time friends and members of CDP, a Haitian street gang in Montreal. There was evidence at trial suggesting that Apaid was a member of a rival Montreal street gang. There was a history of bad blood between the two gangs.
[8] At about 2:45 a.m., the three men left the club and ran into Apaid and Aschley. Aschley recognized Mr. Jean because they had been at high school together in Montreal. There were discussions between the two groups and the situation escalated. The three men left the area but soon returned and continued the confrontation.
[9] According to Aschley, the appellant – who was holding a 12-gauge sawed-off shotgun – stepped forward and fired at Apaid, then advanced further and fired the shotgun again, at close range, into Apaid’s abdomen. After a struggle, Aschley managed to get control of the shotgun. He swung the shotgun at the three men. Before the three men fled, Mr. Jean pleaded with Aschley not to turn him in to the police.
[10] Aschley provided a description of the shooter at the scene, at the hospital, and at the police station. While at the hospital, he also identified the appellant in a photo lineup.
[11] Apaid was discharged from hospital on March 13, 1998, but died 5 days later. Dr. Johnston, a forensic pathologist, performed the autopsy and testified that the cause of death was a blood clot blocking the flow of blood to the lungs, likely brought on by complications arising after surgery. Dr. Pollanen, a forensic pathologist, and Dr. Rodger, an expert in hematology and epidemiology, testified in support of Dr. Johnston’s conclusion on the cause of Apaid’s death.
[12] The appellant turned himself in to police on February 25, 1998. Mr. Jean considered fleeing the country but the appellant convinced him otherwise, promising to plead guilty in exchange for Mr. Jean’s freedom. Mr. Jean turned himself in to police on March 3, 1998. Both men were charged with attempted murder.
[13] After Apaid died and the charges were upgraded from attempted murder to murder, the appellant changed his mind and pleaded not guilty. Both he and Mr. Jean were convicted of second degree murder at the first trial. They successfully appealed those convictions.
[14] A second jury trial was conducted. Again, both the appellant and Mr. Jean were convicted of second degree murder. And, again, both successfully appealed against conviction.
[15] Before the third trial, Mr. Jean pleaded guilty to manslaughter and was sentenced to time served. He was released from prison after having served 15 years.
[16] There were two main evidentiary issues at the appellant’s third trial:
(1) Was the appellant the shooter?
(2) Did the shooting cause Apaid’s death, which occurred over a month later?
[17] At the third trial, both Aschley and Mr. Jean testified on behalf of the Crown. Eight other independent witnesses also testified for the Crown. Their evidence confirmed that of Aschley and Mr. Jean in a number of material respects, although none of the eight positively identified the appellant as the shooter.
Jury question
[18] On the 14th day of trial at about 3:52 p.m., the trial judge received a note from the jury (the “first note”). The first note consisted of three paragraphs, each of which was written in different handwriting. The jury was excused and the first note was shown to counsel.
[19] The first paragraph of the first note was a single sentence that read:
This is a shared concern for all jury members, to varying degrees & for different reasons.
[20] The second paragraph gave some personal information about one of the jurors and asked what dangers there were to his/her life and his/her family’s life from the CDP gang. The third paragraph gave some personal information about one juror and said that he/she and his/her family felt vulnerable.
[21] The trial judge was concerned because the second and third paragraphs in the first note revealed personal details about some of the jurors. With the consent of the parties, the first note was ordered sealed.
[22] When the jury returned to the courtroom, the trial judge told them that the first note had been sealed because it had information about some of the jurors’ personal lives and he was concerned about the personal information becoming a part of the public record. The trial judge went on to say:
So, what I suggest that you do, if there’s [sic] continuing concerns along that line, that you reformulate your comments but take out anything whatsoever that would identify you in any way whatsoever. So, I’ll let you retire and think about things and see what you want to do at this point. All right? Thank you.
[23] At about 4:30 p.m. that same day, the trial judge was given another note from the jury (the “second note”). The second note read as follows:
The jury does not require a response and withdraws the request.
[24] Upon receiving the second note, the trial judge acknowledged that the jury had indicated that it did not need a response and had withdrawn its question. However, before dismissing the jury for the day, he reiterated his willingness to consider any concern that they might have. He said:
If there’s anything that you’re concerned about or there’s any questions you have for me, please put them in writing, but my concern, as I said to you before, is just don’t put – a jury is a group. An individual thing should be – I don’t think you need to quote, unless they’re absolutely necessary. In certain circumstances, obviously, you have to do that kind of thing, but I just – certainly if there’s any request you have for me or for anybody or that you’re concerned about, please put them in writing and I’ll deal with them when I receive them. All right? Thank you. Good night.
[25] The following day, defence counsel asked the trial judge to start an inquiry under s. 644 of the Criminal Code to determine whether any of the jurors should be discharged because of the first note. He contended that an inquiry under s. 644 of the Criminal Code was required to determine whether the jury’s concern (as expressed in the first note) arose from evidence at trial or external information, and whether concern for their own safety might prevent jurors from discharging their duty according to their oath.
[26] Crown counsel told the trial judge that his initial response was that the jurors had sworn oaths of impartiality and could be expected to follow their oaths. However, he now thought that the way to proceed would be to tell the jury that “at no time over the past 14 years has there been any complaint of any approach, threat or harm to any juror in this case” followed by each juror being asked individually “are you still able to render a true and fair verdict based on the evidence you have heard?” Each juror would then be told to leave the courtroom and individually indicate, in writing, “yes” or “no” to the question.
[27] After further discussions with counsel about the way in which such an inquiry could be conducted, the trial judge decided against conducting an inquiry. He referred to the jury’s sworn oath of impartiality and the presumption in law that jurors would abide by the oath. He said that there was nothing in the first note to indicate that the jury would do anything other than abide by the oath of impartiality. The trial judge concluded by saying that because the jury, on further consideration of the matter, had withdrawn its request, he did not see how he could make such an inquiry without entering into the jury’s deliberations or asking the jurors to reveal their discussion in the jury room that had led to the withdrawal.
[28] Out of an abundance of caution, the trial judge then reiterated to the jury the instructions he had given them the previous afternoon to the effect that if the jurors had any further cause for concern, they were to express those concerns in writing and he would do his best to answer them.
The Identification Evidence
[29] Aschley’s account of the shooting and that given by Mr. Jean were very similar. Both testified that there was an argument between the three men and two brothers that became heated. Both confirmed that the appellant disappeared and returned with a sawed-off shotgun that he used to shoot Apaid at close range.
[30] The evidence of these two witnesses was confirmed in a variety of material ways by the other witnesses. Two women who worked at the nightclub in question, and knew the appellant because he was a frequent patron, testified that they saw the appellant in the nightclub that night. The bouncer at the nightclub testified that he had seen Mr. Jean at the nightclub on the night in question with two other men, one of whom was around the same size as Mr. Jean and the other who was smaller. Two witnesses who were on the street during the incident confirmed other aspects of their testimony. One described seeing a man with a gun standing over the victim, pointing down at him and then she saw him shoot the victim a second time. The other heard an argument followed by two shots. When she saw a body on the ground she went to help. As she approached, “[e]verybody disappeared” except for a distressed young man with a gun in his hands.
The Crown Closing
[31] In his closing address to the jury, Crown counsel said the following:
Fifteen years and one day from the date that Apaid Noël was shot down, the evidence you’ve heard in this courtroom is stronger than it’s ever been. It’s unusual, I think, for maybe evidence to get stronger as time goes along, but that’s what’s happened here, and it’s stronger because you’ve heard from Darlind Jean, who recently made the momentous decision to leave the gang behind and testify here in court and because you’ve heard from two experts, who have international recognition about the cause of the clot that killed Apaid Noël, how the shots from Robert Sarrazin led directly and inexorably to the clot that killed him.
[32] Defence counsel unsuccessfully requested a mistrial as a result of these comments (the “impugned comments”).
THE ISSUES
[33] The appellant submits that the trial judge:
erred by failing to inquire into juror bias following the first note;
gave inadequate and erroneous instructions on the issues of eye-witness and in-dock identification; and
erred by failing to grant a mistrial after the Crown made the impugned comments in its closing address.
[34] If the appeal is allowed, the appellant raises a fourth issue, namely, whether this court should order a stay of proceedings. He argues that, in the circumstances, ordering a fourth trial would constitute an abuse of process and a violation of s. 7 of the Charter.
ISSUE #1 THE FIRST NOTE
[35] The appellant submits that the trial judge erred in failing to inquire into jury bias following the jury’s first note. He maintains that the first note showed that the jury was afraid of the appellant and the gang to which he belonged and showed bias or raised a reasonable apprehension of bias. He says that the fact that the jury withdrew the first note is of no import, given the jurors’ serious expression of fear for their safety and that of their families, contained in the first note.
[36] I do not accept this submission.
[37] The appellant’s position rests on the assumption that the first note showed that the jurors were afraid of the appellant and the gang to which he belonged and consequently had lost their impartiality.
[38] With respect, this assumption is flawed. The first note contains the jury’s expression of concern about safety and feeling vulnerable. As the trial judge observed, in the circumstances of this case, the first note does not give rise to a realistic potential for the existence of partiality. To this I would add simply that the first note does not even refer to the appellant. It refers to the CDP gang.
[39] Further, as the trial judge indicated, there is a presumption in law that the jury would abide by its sworn oath of impartiality and he found nothing in the first note to indicate that the jury would do anything other than abide by that oath.
[40] Moreover, the appellant has failed to appreciate the significance of the jury’s withdrawal of the first note in two regards.
[41] First, as the trial judge indicated, in light of the jury’s withdrawal of the first note, an inquiry would have intruded on jury secrecy because the trial judge could not have inquired into the substance of the concerns in the first note without giving some consideration as to why the jury withdrew it. That would engage the improper revelation of jury deliberations. As this court emphasized in R. v. Kum, 2015 ONCA 36, 320 C.C.C. (3d) 190, jury secrecy is to be jealously guarded.
[42] Second, the appellant’s reliance on R. v. Ellis, 2013 ONCA 9, 113 O.R. (3d) 641, is misplaced.
[43] In Ellis, the police found a bag on the accused that contained crack cocaine and money. The accused denied knowledge of the drugs and said the money was collected as part of a partners program with other members of the Jamaican community and he was the recipient of the money that week.
[44] After some deliberations, the jury sent the judge a question asking whether it could consider, as evidence, the absence of other members of the partners program as witnesses. While the judge was discussing with counsel how best to respond to the question, the jury indicated that it had reached a verdict. Without any inquiry of the jury about whether it still required an answer to its question, the trial judge accepted the jury’s verdicts finding the accused guilty.
[45] This court allowed the appeal from conviction.
[46] Watt J.A., writing for the court, held that, before receiving the jury verdict, the trial judge should have confirmed with the jury whether it required an answer to the question and given it the opportunity for further discussion before it returned its verdict (Ellis, at para. 67). He stated that, for cases in which the jury’s question reflects a legal misapprehension – or raises the prospect that, absent further instruction, the jury may be under a misapprehension about a governing legal principle – the trial judge should provide jurors with the appropriate corrective instruction and an opportunity to retire, to reconsider whether they require further time for deliberations (Ellis, at para. 66).
[47] Unlike in Ellis, in this case the jury expressly withdrew the question and advised the trial judge that it did not need a response to it. Thus, this was not a case where the jury reached a verdict while it had an unanswered question. In this regard, it is worth noting that the trial judge was at pains to tell the jury several times that it could put any questions and concerns to him. Furthermore and importantly, the concern expressed by the jury in the first note did not reflect a misapprehension of the law or governing legal principles.
[48] Accordingly, this ground of appeal must fail.
ISSUE #2 THE IDENTIFICATION INSTRUCTIONS
[49] The appellant submits that the trial judge’s warning to the jury about the frailties of eye-witness and in-dock identification evidence were inadequate. He says that:
• the instructions lacked the requisite case-specific content;
• Aschley did not know the appellant so the trial judge ought to have told the jury that Aschley’s certainty was not probative of accuracy;
• the trial judge’s statement that in-dock identification “really does not help” was insufficient and he ought to have given the instruction from R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445;
• the trial judge ought to have mentioned that the witnesses had previously seen the appellant in the media, in police line-ups, and on multiple occasions in the courtroom at two previous trials;
• the trial judge should not have suggested that the jurors “consider” that evidence; and
• the trial judge ought to have reminded the jury that no independent eyewitness identified the appellant in the police line-ups.
[50] In my view, when the trial judge’s instructions are read in the context of the charge as a whole, the instructions were appropriate and in accordance with the governing principles. The trial judge generally and specifically cautioned the jury regarding the frailties of the identification evidence. He conveyed to the jury all of the appropriate legal principles and reviewed the strengths and weakness of the eyewitness evidence.
[51] The trial judge took the jury through each eyewitness’ evidence and gave case-specific commentary about its strengths and weaknesses at each point and how to use in-dock identification. The trial judge gave extensive instructions on the dangers of wrongful conviction and the frailties of eyewitness evidence, including in-dock identification.
[52] Moreover, this court held on the appellant’s first appeal that in-dock identification was not an issue on the facts of this case and that such a warning was not even required: R. v. Sarrazin (2005), 2005 CanLII 11388 (ON CA), 75 O.R. (3d) 485, at para. 113. The only additional witness in this third trial was a personal associate, who knew the appellant well.
[53] While the appellant asserts that Aschley did not know the appellant, this case is not comparable to Hibbert or R. v. Jack, 2013 ONCA 80, 294 C.C.C. (3d) 163, because it does not rely entirely on eyewitnesses who were total strangers to the accused and who saw him only briefly.
[54] For these reasons, I would dismiss this ground of appeal.
ISSUE #3 THE IMPUGNED COMMENTS
[55] The appellant complains that the impugned comments suggested to the jury that because of Mr. Jean’s testimony, the evidence against him was stronger than it had been in his two previous trials. Because the evidence at the previous trials was irrelevant to the jury’s consideration of this case, the appellant says the impugned comments were potentially prejudicial and the trial judge erred in refusing to declare a mistrial or even instruct the jury to ignore the Crown’s comments.
[56] I do not accept this submission.
[57] The essential question raised by this ground of appeal is whether the impugned comments prejudiced the appellant’s right to a fair trial. The trial judge is in the best position to assess the significance of the remarks of counsel, determine if the remarks need to be corrected and, if necessary, correct inaccuracies and remedy any unfairness that might arise from them: R. v. Rose, 1998 CanLII 768 (SCC), [1998] 3 S.C.R. 262, at para. 126.
[58] The trial judge was of the view that the impugned comments did not prejudice the appellant’s right to a fair trial. I agree, for the reasons given by the trial judge.
[59] As defence counsel conceded in response to the trial judge’s questions at trial, the impugned comments made no direct reference to the earlier trials. In any event, as the trial judge noted, the results of the two previous trials and the circumstances surrounding the witnesses’ evidence were already known to the jury. The impugned comments offered no new information, except the fact that the Crown thought that it had a relatively stronger case. It should be noted that the Crown’s view was based, in part, on the medical evidence about the cause of the blood clot that ultimately led to Apaid’s death.
[60] Furthermore, as the majority noted at para. 127 of Rose, the trial judge was in the best position to determine whether remedial steps were necessary. In this case, the trial judge gave an appropriate ameliorative instruction:
Just a note about retrials. This case has been tried before, as we all know. Do not speculate about what happened during or at the end of the trial or why there is another trial. What happened there has absolutely nothing to do with your decision in this trial, absolutely nothing. You must decide this case on the evidence that you have seen and heard given in this courtroom during this trial, and according to my legal instructions that you are now receiving to govern your deliberations and decision. Nothing else matters, and that includes what happened at any prior trial. That is the end of the story.
[61] Finally, a trial judge’s decision whether to grant a mistrial is discretionary and subject to considerable deference on appeal: Kum, at para. 49. I see no basis on which to interfere with the trial judge’s exercise of discretion to refuse to grant a mistrial.
ISSUE #4 A STAY OF PROCEEDINGS
[62] As I would not allow the appeal, it is unnecessary to consider this issue.
DISPOSITION
[63] For these reasons, I would dismiss the appeal.
Released: September 29, 2016 (“E.E.G.”)
“E.E. Gillese J.A.”
“I agree. Paul Rouleau J.A.”
“I agree. David Brown J.A.”
[^1]: See R. v. Sarrazin (2005), 2005 CanLII 11388 (ON CA), 75 O.R. (3d) 485 (C.A.); and R. v. Sarrazin, 2011 SCC 54, [2011] 3 S.C.R. 505.
[^2]: Because the two brothers have the same last name, to avoid confusion, I refer to them by their first names in these reasons.