ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 09-50000744-0000
DATE: 20121019

BETWEEN:

HER MAJESTY THE QUEEN – and – Peer Mohammad Khairi Accused

Robert Kenny and Amanda Camara, for the Crown

Christopher Hicks and Anthony Labar, for the Defendant

HEARD: October 9, 2012

Clark J.

REASONS FOR DECISION

INTRODUCTION:

[ 1 ] The accused is charged with having murdered his wife. On October 5, 2012, immediately following the Crown’s opening statement, Mr. Hicks indicated that he would ask for a mistrial on the basis of what he contended was the improper content of that opening. On October 9, 2012, I heard the motion and, in a brief oral pronouncement, dismissed it, indicating that I would provide reasons as soon as time permitted; what follows are those reasons.

TIMING OF THE MOTION

[ 2 ] Before dealing with the merits of the application, I wish to discuss briefly its timing.

[ 3 ] The jury selection in this matter was completed early on Friday, October 5. Immediately after jury selection, I gave the jury my opening instructions. Following my remarks, the Crown proceeded to open to the jury. It had been earlier agreed that, although he would open on the Friday, the Crown would not begin to actually call evidence until Tuesday, October 9.

[ 4 ] When Mr. Hicks indicated that he intended to seek a mistrial, I suggested that we proceed to argue the matter immediately because, if I were to decide that the accused’s fair trial interests could be salvaged by some means short of a mistrial, I thought it desirable to give any ameliorative instructions before dismissing the jury for a long weekend. In response, notwithstanding that the jury would be left to contemplate the offending remarks for four days, Mr. Hicks indicated that he would prefer to make his submissions on the Tuesday in order that he might secure a copy of the transcript and research some of the applicable case law. At his request, I adjourned the hearing of this application to October 9. While it would have been preferable to give a corrective instruction as soon after the offending remarks as possible, I am satisfied for the reasons that follow that, despite the delay, the prejudice, if any, arising from the Crown’s opening can be overcome by instruction.

POSITION OF THE ACCUSED/APPLICANT

[ 5 ] The applicant asserts that his right to a fair trial has been irremediably compromised by the Crown’s opening remarks. The alleged improprieties fall into two main categories. First, Mr. Hicks asserts, the opening included numerous instances where Mr. Kenny argued the case for the Crown. Secondly, counsel argues that Mr. Kenny’s references to the gravity of the injuries suffered by the deceased were excessively detailed, unnecessarily repetitive and delivered with a rhetorical flourish that, while permissible in a Crown closing, has no place in an opening address. Looked at cumulatively, Mr. Hicks says, those remarks are inflammatory.

[ 6 ] Mr. Hicks further suggests that a lay jury is especially impressionable at this early stage of the trial, particularly when the offending remarks issue from the Crown Attorney, who, by virtue of his office, is apt to make an indelible impression on the minds of the jurors. In the circumstances, Mr. Hicks contends, no judicial instruction is capable of overcoming the prejudice the offending remarks have created. As such, the only appropriate remedy is a mistrial.

POSITION OF THE CROWN/RESPONDENT

[ 7 ] On behalf of the Crown, Ms. Camara concedes that, with the benefit of hindsight, some of Mr. Kenny’s remarks were inappropriate. That said, she asserts that neither individually nor in the aggregate are they so prejudicial as to require the remedy sought by the defence. Rather, Ms. Camara asserts that it would be sufficient to simply remind the jury that what Mr. Kenny said is not evidence.

DISCUSSION

General Principles

[ 8 ] To begin, it is trite to observe that "the Crown's opening address should be impartial and fair, a brief outline of the evidence that the Crown intends to call": R. v. Griffin , [1993] O.J. No. 2573, (Gen. Div.), at para. 31. When that standard is departed from, the question becomes what the remedy ought to be. In this case, as noted, Mr. Hicks seeks a mistrial.

[ 9 ] The decision whether or not to declare a mistrial in order to overcome unfairness to an accused or to prevent an injustice involves an exercise of discretion: Emkeit v. The Queen , 1972 169 (SCC) , [1974] S.C.R. 133, at 139-40; R. v. Gregoire (1995), 1995 ABCA 153 () , 165 A.R. 292 (C.A.), at para. 13. That discretion “is a power of special application which should only be used in the clearest of cases”: R. v. Paterson (D.R.) (1998), 1998 14969 (BC CA) , 102 B.C.A.C. 200, at para. 93. It is a remedy of last resort, to be utilized when what transpires is, as stated in R. v. Ambrose , (1976), 1975 1434 (NB CA) , 25 C.C.C. (2d) 90 (N.B.C.A.), at para. 6 ; aff’d 1976 201 (SCC) , [1977] 2 S.C.R. 717, "so prejudicial that the jury would not have the capability of disregarding it" or, put another way, where “the unfairness of the trial process has been so violated that it cannot be cured by other remedial measures”: R. v. Noel , [2000] O.J. No. 2740 (S.C.J.), at para. 6. In deciding whether to declare a mistrial, the court must take into account not only the interests of the accused, but also those of “public justice”: R. v. D. (1987), 1987 6777 (ON CA) , 38 C.C.C. (3d) 434 , at 445 (Ont. C.A.).

[ 10 ] Regarding mistrials sought in respect of jury addresses, as Laskin J., as he then was, stated in Pisani v. The Queen (1970), 1970 30 (SCC) , 1 C.C.C. (2d) 477 (S.C.C.), at 479, “there can be no unyielding general rule that an inflammatory or other improper address to the jury by Crown counsel is per se conclusive of the fact that there has been an unfair trial...” Rather, in considering whether remedial measures short of a mistrial will be effective, it must be remembered that the law assumes that, for the most part, juries will follow legal instruction: R. v. Corbett (1988), 1988 80 (SCC) , 41 C.C.C. (3d) 385, at 400-01; R. v. Vermette (1988), 1988 87 (SCC) , 41 C.C.C. (3d) 523, at 531; Daganais v. Canadian Broadcast Corporation , 1994 39 (SCC) , [1994] 3 S.C.R. 835, at 853; R. v. Suzack (2000), 2000 5630 (ON CA) , 128 O.A.C. 140, at para. 102.

Authorities Relied on by the Accused/Applicant

[ 11 ] With that brief overview of the applicable principles, I turn to the authorities relied upon by Mr. Hicks in support of his position that a mistrial is the only viable remedy in this instance.

[ 12 ] Mr. Hicks began his argument by referring to R. v. Boucher , 1954 3 (SCC) , [1955] S.C.R. 16, which is, of course, the locus classicus respecting the proper conduct of Crown counsel in a criminal prosecution. Counsel asserts that the restraint Boucher requires on the part of Crown counsel is particularly important at the outset of a trial. This point was made in R. v. Mallory , where the court stated, ‘[a]t the opening of [a] trial the rules constraining the Crown "should apply with even more vigour" than at the closing when by then the jurors have heard and seen all about the case’: 2007 ONCA 46 () , [2007] O.J. No. 236 (C.A.), at para. 338 , citing Griffin , at para. 23.

[ 13 ] Mr. Hicks then went on to refer to a number of cases in which a mistrial was declared as a consequence of an improper Crown opening. I note, however, that in the cases upon which he relies the offending remarks were more egregious than in the case at bar.

[ 14 ] For example, in Griffin , the Crown told the jury in her opening that she would call “irrefutable” evidence, ventured her opinion as to the guilt of the accused and, asked “many rhetorical questions aimed specifically at the conclusion that the accused [was] guilty before his trial [had] even begun”: at para. 51.

[ 15 ] In R. v. Sun , [2002] O.J. No. 2166 (S.C.J.) , a drug case, Crown counsel characterized the amount of money and drugs involved as “enormous and unusually large”, vouched for the credibility of a Crown witness and told the jury that the accused “were not innocent people.” I note, however, that, although she mistried the case, Low J. indicated at paragraph 8, citing Ambrose , supra , that “not every deviation from a paradigmatic fair trial will warrant a declaration of a mistrial...”

[ 16 ] In R. v. White , [1997] O.J. No. 5899 (Gen. Div.) , the Crown raised the theory of the defence in his opening and suggested that the defence witnesses were dishonest.

[ 17 ] In R. v. L.L. (2009), 2009 ONCA 413 () , 244 C.C.C. (3d) 149 (Ont. C.A.), Simmons J.A., speaking for the court, found that in its opening the Crown overstated its position and engaged in improper editorializing. The Court allowed the appeal on the basis that the improper opening, when considered cumulatively with other Crown transgressions during the trial, undermined the appearance of fairness. It is not clear to me, however, from my reading of the case, that the same result would have obtained had the improper opening been the Crown’s sole impropriety.

Other Authorities

[ 18 ] On the other hand, in a number of cases courts have declined to declare a mistrial on the basis of an improper Crown opening, holding instead that a direction to the jury to ignore the offending remarks was sufficient to remedy any unfairness.

[ 19 ] In R. v. Bolus , [2002] O.J. No. 386 (C.A.) , the court upheld the trial judge’s refusal to declare a mistrial where “the improper comment was a single line in a lengthy opening and ... the offending portion...was not repeated...”

[ 20 ] In R. v. Barnes , [1999] O.J. No. 119 (C.A.) , the Crown had told the jury in his opening that “because of certain rulings [they would] not hear much in the way of actual police first hand evidence...” Despite finding that Crown counsel’s remark was both “inaccurate and highly improper”, the court upheld the trial judge’s decision that “any prejudice to the appellant could be cured by an appropriate instruction to the jury”: at paras. 2 and 4.

[ 21 ] In Mallory , at paragraph 338 , the court held that it is “well established that the opening address is not the appropriate forum for argument, invective, or opinion” and went on to say that the Crown should use the opening address “to introduce the parties, explain the process, and provide a general overview of the evidence that the Crown anticipates calling in support of its case.” Against that template, the Court went on to say, at paragraph 342, that "... Crown counsel demeaned the position of the defence and the role of defence counsel, engaged in pre-emptive argument, undermined the presumption of innocence, and expressed her personal opinion as to the guilt of the appellants.” The court also found, at paragraph 344, that the Crown’s closing was “not in keeping with the standard outlined in R. v. Boucher ...” Notwithstanding those improprieties, at paragraph 345, the Court held:

We recognize that there are many cases involving similar remarks, uncorrected by the trial judge, that have been found by this and other courts not to be fatal : see e.g. R. v. Baltrusaitis, supra; R. v. Clark (2004), 2004 12038 (ON CA) , 69 O.R. (3d) 321 (C.A.) ; R. v. Daly, supra. In view of the numerous other errors to which we have referred, it is not necessary for us to pronounce definitively upon the effect of the Crown's rhetorical excesses. Suffice it to say that we view the passages we have quoted from the Crown's opening and closing to have been inappropriate, and that in our view, at a minimum, the trial judge should have given a corrective instruction to redress the imbalance it created and to alleviate the risk that the jury might be improperly influenced. [Emphasis added.]

[ 22 ] It is well settled that the Crown occupies a place of singular importance in the judicial system, such that the remarks of Crown counsel are apt to have more suasive power than those of other barristers: R. v. Hahn , 1995 674 (BC CA) , [1995] B.C.J. No. 1472 (B.C.C.A.); aff’d [1996] S.C.C.A. No. 139. Thus, as the above quoted passage makes plain, there is, without question, a risk that inappropriate Crown remarks can improperly influence a jury. That said, it is not a given. Nor is it necessarily the case that, where there has been improper influence, it cannot be overcome by ameliorative instruction. [1]

[ 23 ] Before leaving this topic, I note that Mr. Hicks twice made the observation in oral argument that the jury was “manifestly” affected by the content of the Crown’s remarks. With respect, I was watching the jury throughout Mr. Kenny’s remarks and I could discern no particular reaction on the part of any of the jurors to any of the remarks of which Mr. Hicks complains.

Length and Repetitive Nature of the Opening Address

[ 24 ] Mr. Hicks complains that the opening was unduly long and repetitive, and, while I do not disagree, it must be borne in mind that the length of an address is not the determining factor in terms of its propriety; rather, sometimes the length of the trial will require that an opening address be lengthy: R. v. Porter , [1992] O.J. No. 2931 (Gen. Div.) .

[ 25 ] As for repetition, I tend to agree with Mr. Hicks that the repeated references to the nature and severity of the deceased’s wounds were unnecessary. I also agree that, left uncorrected, those remarks might have some potential to be inflammatory. I disagree, however, as to the degree of any such prejudice and, by extension, disagree that the only remedy is a mistrial.

Rhetorical Flourish

[ 26 ] Mr. Hicks’ complains that the Crown indulged in rhetorical excess, and noted in his factum numerous examples of what he contends was offending language in that regard. While I do not accept that all of the examples Mr. Hicks cited were inappropriate, I do agree that some of Mr. Kenny’s language was much more suited to a closing than an opening. That said, I am convinced that nothing he said was so dramatic or emotive that, with the benefit of an instruction in that behalf, the jury would not be able to put his remarks out of their minds.

Argument

[ 27 ] Mr. Hicks also complains that the Crown’s opening was replete with argument. Clearly, argument has no place in a Crown opening. Rather, as Whealy J. stated in R. v. Hamilton (1992), 1991 13908 (ON SC) , 10 C.R. (4th) 385 (Ont. Gen. Div.), at 390-91:

[A]n opening speech for the Crown, which has no statutory basis in the Criminal Code , is a custom of practice which is allowed as a convenience to the jury who know nothing yet of the case. They should be told in a neutral and short way what to expect in testimony and, if desired, from whom. Its purpose is to provide a sketch of what is expected to be looked for in the evidence, because that is what the prosecution is setting out to prove.

It should not be a platform from which the first of two powerful speeches are put to the jury by the Crown. While the opening speech should be so restricted, much greater latitude must be allowed, at the conclusion of the evidence, in closing argument. In this fashion both the prosecutor and the defence operate from a “level playing field.”

[ 28 ] It is not objectionable in an opening to identify the issues that the jury will be asked to determine in order that they have some framework within which to better understand the evidence that is then outlined for them: Porter, supra. Unfortunately, as I indicated to the jury in my corrective instruction, sometimes counsel tend to stray from simply indentifying the issues to arguing them. Although I am confident in this case that Mr. Kenny did not do so wilfully, in my view he clearly crossed that line on more than one occasion.

Gratuitous Remark

[ 29 ] There was one remark that I was particularly troubled by, although Mr. Hicks took no issue with it.

[ 30 ] In the course of a statement he made to the investigators, the accused criticized the officers who had first attended his apartment in response to his 911 call. The essence of his criticism was that, had the officers entered his apartment more quickly, instead of (in Mr. Khairi’s view) lingering outside concerned for their own safety, they might have been able to summon medical help for his wife more quickly and, potentially at least, might have saved her life. Judging by the nature of the injuries he inflicted on his wife, that would appear not to be the case. Nonetheless, that remark, coming from the mouth of a man who had, only hours before, brutally slain his wife, is offensive to any right thinking person. More importantly, for purposes of this discussion, it has no bearing that I can see on the Crown’s case.

[ 31 ] When I raised this issue with Crown counsel in the course of oral argument, Ms. Camara indicated that Mr. Kenny mentioned it because the jury would hear it in the course of the evidence. While that is undoubtedly correct, that answer is, with respect, unsatisfactory. The jury will hear all sorts of evidence that was not mentioned in the opening. Therefore, I fail utterly to understand why Crown counsel would mention in his opening statement a remark that has no probative value for the Crown, but the clear potential for prejudice against the accused. Accordingly, I specifically indicated to the jury that they should ignore that remark.

Defence Ameliorative Opening

[ 32 ] In the course of oral argument on the motion, I indicated to Mr. Hicks, that, were I to decide not to mistry the case, but, rather, to issue a corrective instruction, I would also be prepared to consider allowing him the same option made available to the defence in R. v. Sparkes , [2005] O.J. No. 1883 (C.A.) . In that case, the appeal court noted with approval that, in addition to the opening defence counsel would be entitled to make at the commencement of the defence case, the trial judge gave counsel an additional opportunity to open to the jury immediately following the Crown’s opening in order to offset the improprieties it contained. Mr. Hicks specifically indicated that he did not wish such an opportunity.

RESULT

[ 33 ] Having considered the aforementioned general principles and measured the improprieties of the Crown’s opening against those of the other cases noted above, I decided not to mistry this case, but, rather, to issue a corrective instruction.

R. Clark J.

Released: October 19, 2012

COURT FILE NO.: 09-50000744-0000
DATE: 20121019

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – Peer Mohammad Khairi Defendant

REASONS FOR DECISION

R. CLARK J.

Released: October 19, 2012

[^1]: I note, parenthetically, that, once I had decided to give a corrective instruction, I gave counsel a preview of that instruction and asked for any input they might wish to make; both Crown and defence indicated that they were content with the content of that instruction.