NEWMARKET COURT FILE NO.: CR-11-01457

DATE: 20140228

CORRECTED DATE: 20140501

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MOHAND MOHAMAD

Defendant

P. Westgate/R. DeChellis, for the Crown

M. Mirosolin/S. Wickramasinghe, for the Defendant

HEARD: June 19-20, 2013

Corrected decision: The text of the original Ruling was

Corrected on May 1, 2014 and the description of the correction

is appended.

RULING #3 – MISTRIAL APPLICATION

McISAAC J.

[1] Following immediately on the heels of a successful Crown “K.G.B.” application in relation to the purported eyewitness to this fatal shooting, the accused launched an application for an order aborting this first degree trial that is now in its fourth week of evidence. I dismissed the application on June 20, 2013 and undertook to provide more fulsome reasons in due course. These are those reasons.

BACKGROUND

[2] The accused was arraigned on May 27, 2013 and jury selection concluded three days later. Crown counsel made his opening statement on May 31, 2013 and called his first witness that afternoon. This gentleman, Sean McDermott, had reluctantly given a “K.G.B.” statement to the police indicating that he had witnessed the shooting death of his roommate. Although he had never met the accused before, he identified him as the shooter as his roommate had pointed him out just before the incident. Mr. McDermott recanted much of the evidence that implicated Mr. Mohamad in this allegation of an execution-style homicide. Numerous attempts were made to refresh his memory and the Crown was granted leave to cross-examine on Mr. McDermott’s three previous police statements and preliminary hearing testimony. This exercise took some six days and culminated with the Crown’s successful “K.G.B.” application which was allowed on June 17, 2013. Needless to say this was a laborious, if not tedious, exercise that, no doubt, challenged the attention-span of all trial participants.

[3] On June 18, 2013 defence counsel lodged a complaint that some members of the jury had appeared to have fallen asleep during Mr. McDermott’s testimony. Why this was not brought to my attention contemporaneously boggles my mind. In any event, with the concurrence of all counsel, I conducted an inquiry of the jury and posed the following question:

Have there been times during the evidence when you have had difficulties either staying awake or focusing on the evidence?

[4] Although a number of jurors answered the question affirmatively, only one of the group stated that he had actually “nodded off” momentarily during the presentation of the evidence.

POSITIONS OF THE PARTIES

[5] Mr. Wickramasinghe suggested that there were grave concerns that a miscarriage of justice had taken place because the jury had become distracted and frustrated by the process and that they clearly had difficulty remaining focused on the evidence. He submitted that a mistrial was the only way to ensure the integrity of the trial process.

[6] The Crown acknowledged that the jury was frustrated with the slow process of the trial but there was no evidence that the jury or any of its members missed anything significant in the trial given Mr. McDermott’s never-ending mantra that he could not remember the details of the night in question.

ANALYSIS

[7] A mistrial is a remedy of last resort. It is a power of special application which should only be used in the clearest of cases. It should only follow a fatal wounding of the trial process which cannot be cured by remedial measures: see R. v. Patterson (1998) B.C.A.C. 200 at para. 93. A momentary loss of attention by the trier of fact is insufficient to create a miscarriage of justice; the applicant seeking the drastic remedy of a mistrial must go further and establish some concrete prejudice: see R. v. Tyler [1997] Q.J. No. 2739 (Quebec Superior Court, Criminal Division).

[8] One must never lose sight of the fact that there are 12 citizens on this jury. They do not operate in splendid isolation. Collectively they spread a wide net to capture all the details and nuances of the testimony presented at a criminal trial. No doubt one or two may miss an item of evidence. However, that point surely will not be missed by the entire group. That is part of the success of this institution over the centuries. In addition, the jury will have the benefit of the monitors to play back any part of the evidence if requested by them during the course of their deliberations. In summary, I am satisfied there are sufficient prophylactics built into the jury system to remedy any deficiencies in jury concentration in this case.

CONCLUSION

[9] For all of these reasons, the application is dismissed.

McISAAC J.

Released: May 1, 2014

Correction made to the spelling of the Defendant’s surname from Mohamed to Mohamad:

p. 1 - Neutral Citation Line

p. 1 - para. 2 – 7th line