ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13325/13
DATE: 20150609

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TIN WAI HONG, MASON GILLARD-GATZA, NATHANIEL CAIN and RAPHAEL GUERRA

Defendants

Ronald Davidson and Lucas O’Neil, for the Crown

Michael Strathman for Tin Wai Hong
Stephen T. Lyon for Mason Gillard-Gatza
Anthony G. Bryant and Karen E. Symes for Nathanial Cain
David G. Bayliss for Raphael Guerra

HEARD: June 2, 2015

RULING ON jury inquiry

RESTRICTION ON PUBLICATION: Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

Boswell J.

OVERVIEW:

The Issue

[1] In the middle of this multi-accused murder trial, a note from the jury raised concerns amongst defence counsel that there may be some latent racial bias lurking among the jurors and/or that juror fearfulness may compromise impartiality. Counsel asked that the court conduct an inquiry into the matter. I agreed. When the initial inquiry was complete, defence counsel submitted that the court should conduct a further inquiry. I disagreed. In both instances, my decisions were made on the basis that written reasons would be provided. These are the reasons.

The Offences

[2] The evening of October 19, 2011 started out pretty nicely for Justin McKelvey. Then it turned violent, and ultimately, tragic.

[3] Mr. McKelvey is in his mid-twenties; a lifelong resident of Minden, Ontario. In 2011 he was peddling pot to other locals from the pound level on down. On October 19, 2011 he was invited to his grandparents’ house for dinner. Dinner was served relatively early that night and by about 6:00 p.m. he was on his way home. He was looking forward to getting into a beer before the Leafs game started. He invited some friends over to smoke some weed and watch the game with him.

[4] By about 10:30 p.m., the hockey game was over and Mr. McKelvey’s friends had departed, save for his best friend, Ryan Kennedy. I don’t know how much Mr. Kennedy knew about Mr. McKelvey’s involvement in the marijuana trade. I am confident he had no idea of the danger he was in that night.

[5] As Mr. McKelvey and Mr. Kennedy watched sports highlights on television, three masked men quietly slipped through the back door into Mr. McKelvey’s residence, apparently intent on stealing his supply of marijuana as well as his money. Whether they intended anything more remains a live issue in this case. A fourth man waited nearby in a getaway car. At some point during the next ten minutes or so, Mr. Kennedy was beaten to death with a baseball bat, or a pellet rifle, or perhaps a combination of both. Mr. McKelvey was being beaten when the attack was interrupted by a vehicle pulling into his driveway.

The Defendants

[6] The three masked intruders are on trial here. They are Mr. Hong, Mr. Gillard-Gatza and Mr. Cain. Their wheelman was Mr. Guerra. He is also on trial here. Identity is not a live issue. The level of culpability, if any, is.

[7] Mr. Hong is Asian. Mr. Gillard-Gatza is white. Mr. Guerra and Mr. Cain are black.

The Proceedings to Date

[8] The evidentiary portion of the trial has been ongoing for about a month and a half. The jury has heard a great deal of evidence from identification officers, first responders, a blood spatter expert, a forensic pathologist, and representatives from two different cell phone companies, amongst others. On May 25, 2015, they began to hear evidence from Mr. McKelvey. He described his observations as to what happened inside his residence before and after the intruders entered. His description involved, I think it fair to say, incidents of extreme violence. Mr. Hong and Mr. Cain were particularly implicated in the violence.

[9] Mr. McKelvey’s examination-in-chief was completed on May 26, 2015. Mr. Strathman, as counsel to Mr. Hong, began his cross-examination on May 27. It continued the next day.

[10] At some point during the afternoon of May 28, three black males attended in the courtroom and sat in the public body of the court. One of the accused – apparently Mr. Cain – turned to look at the gentlemen as they came in. One or more of the jurors perceived that Mr. Cain acknowledged the presence of the three men.

The Note

[11] Near the end of the day on May 28, the jury provided the court with a note (the “Note”) that read as follows:

After the three men that attended court today, who the defendants acknowledged and appeared to recognise, there is a feeling that we need to be reassured about our safety outside of court/the courtroom. Are there procedures in place to ensure our safety/anonymity?

Kind Regards

The Immediate Aftermath of the Note

[12] The Note was provided quite late in the day on May 28, which was a Thursday. The court was not scheduled to sit again until the following Tuesday, June 2. I excused the jury at the end of the day on May 28, for reasons I have previously provided to counsel orally. Counsel expressed concern to me that the jury would spend the weekend fretting about being in danger from their clients. A consensus was reached amongst counsel that the jury should be given the following instruction through phone calls made by the jury clerk:

Members of the Jury

I have canvassed the content of your note with counsel. Following a brief inquiry I have confirmed that the three men mentioned in your note have no connection to this case or any of the defendants involved in it.

I have confirmed that their attendance in the courtroom was for the purpose of providing one of the defence counsel with some documentation on an unrelated matter. None of the defendants knows any of the three men.

I am satisfied that no further inquiry is necessary or warranted at this time.

[13] I ultimately demurred fearing that the process would offend s. 650(1) of the Criminal Code, which mandates that the accused be present for the entirety of their trial. It is axiomatic that jury instructions are a part, indeed an important part, of the trial. I ultimately deferred any jury instruction to the next sitting day - Tuesday, June 2, 2015. Subsequently, on June 2, I received fulsome submissions from counsel as to their positions regarding the Note.

THE POSITIONS OF COUNSEL:

[14] After hearing counsel’s submissions, it became apparent that there were two principal issues flowing from the Note:

(a) How to best address the jurors’ concerns as revealed in the Note; and,

(b) How to best address the concerns of the accused, flowing from the Note.

[15] The jurors’ concerns, as expressed, were about security and anonymity. Counsel agreed that they needed to be provided with the correct facts about the gentlemen who attended court on the afternoon of May 28, 2015. Specifically, that they were clients of Mr. Strathman on an unrelated matter. I was of the view that they should also be provided with some general remarks about courthouse security.

[16] The content of an appropriate jury instruction proved to be minimally contentious. The form ultimately given to the jury is attached as Appendix “A”.

[17] More contentious was the matter of how to best address concerns of the accused. All of the accused joined in the submission that the jury had essentially racially profiled the men who had come into the courtroom. Further, that they had jumped to conclusions about why the men might be there. Those knee-jerk conclusions included the possibility that the three were connected to the accused and that they posed a threat to the jurors. The conclusions, counsel argued, were obviously prejudicial to their clients. In part due to the prospect of latent racial bias and in part due to the prospect that the jurors were fearful and could no longer decide the case impartially, without sympathy, prejudice or fear. Questions were ultimately raised about whether the accused could still receive a fair trial.

[18] Counsel’s submissions then focussed on three matters:

(a) Whether a formal jury inquiry was warranted or mandated in the circumstances;

(b) The parameters of any such inquiry; and,

(c) The timing of the jury instruction – whether it should be delayed until after the jurors were questioned.

[19] Defence counsel made individual submissions, but were really of one voice in requesting that an inquiry of the jury be conducted into issues raised by the Note. All urged the court to conduct an inquiry, though to be fair, Mr. Bayliss also urged the court to exercise a good deal of caution in the process. He quite rightly pointed out the risks associated with such an inquiry, which include the real possibility of losing the jury altogether.

[20] Mr. Strathman and Mr. Lyon did not make specific submissions about the parameters of the inquiry. Mr. Bayliss submitted that the first concern was determining the facts; specifically, determining what the jurors thought they say. Thereafter the concern would be assessing what prejudice flowed from the facts as determined.

[21] Mr. Bryant made the most detailed submissions in terms of parameters. He suggested that the inquiry cover issues including:

(a) Determining what each juror perceived to have transpired;

(b) Whether the jurors were fearful;

(c) Whether the response was connected to the fact that the three men were black; and,

(d) Whether the jurors could continue to judge the case fairly and impartially, without sympathy, prejudice, or fear.

[22] The Crown’s position was that no jury inquiry was necessary and that the proposed instruction would be sufficient. The jurors should be satisfied from the instruction that the court had made an inquiry about the three men and determined that no security threat existed.

[23] Counsel took different positions regarding whether the proposed instruction, as amended, should be given before or after the proposed inquiry. Some thought before; others after. Those who fell on the “before” side were of the view that the jury should only be questioned after they were made aware of the true state of affairs; in particular that the three courtroom visitors had no connection to this case and were there for another, legitimate purpose. Those who fell on the “after” side were of the view that the court should assess the current state of mind of the jurors in order to get a more accurate view of whether their knee-jerk reaction was racially influenced.

THE LEGAL FRAMEWORK:

[24] At the heart of the application for a jury inquiry are issues of trial fairness.

[25] As Blair J.A. noted in R. v. Afghanzada (2000), 2000 16953 (ON CA), 149 C.C.C. (3d) 349, at page 355, “both the fact of a fair trial and the appearance of a fair trial are essential to the administration of justice”.

[26] Indeed, one might reasonably press the point even further. A fair trial conducted before an independent and impartial tribunal is not only essential to the administration of justice, it is a constitutional imperative: Charter of Rights and Freedoms, s. 11(d).

[27] Canadians are justifiably proud of our justice system. Central to its proper functioning is the concept of a fair trial before an impartial tribunal. Courts are understandably prickly when it comes to protecting that central tenet. The Court of Appeal directed in R. v. Snow, 2004 34547 (ON CA), [2004] O.J. No. 4309 that “where there are allegations giving rise to a reasonable concern that the fairness of the trial might have been compromised, an inquiry is called for in order to clear the air.” (para. 37).

[28] Clearing the air is only one of the functions served by a jury inquiry. The inquiry establishes a factual record which enables the court to determine if there is merit to the allegations that the fair trial rights of the accused have been compromised. At the same time, it enhances meaningful appellate review.

[29] Where questions about the impartiality and/or independence of the jury are the impetus for the inquiry, the court begins with a presumption that the trier of fact is impartial: R. v. Burke, 2002 SCC 55, para. 65.

[30] As Pardu J.A. recently observed in R. v. Farinacci, 2015 ONCA 392, at para. 41:

Jurors, like judges, are presumed to govern themselves by the oath they swore to try the accused on the evidence adduced in the courtroom. As observed in R. v. Spence, 2005 SCC 71, [2005] 3 SCR 458 at para. 22:

Our collective experience is that when men and women are given a role in determining the outcome of a criminal prosecution, they take the responsibility seriously; they are impressed by the jurors’ oath and the solemnity of the proceedings; they feel a responsibility to each other and to the court to do the best job they can; and they listen to the judge’s instructions because they want to decide the case properly on the facts and the law. Over the years, people accused of serious crimes have generally chosen trial by jury in the expectation of a fair result. This confidence in the jury system on the part of those with the most at risk speaks to its strength. The confidence is reflected in the Charter guarantee of a trial by jury for crimes (other than military offences) that carry a penalty of five years or more (s. 11(f)).

DISCUSSION:

The Need for an Inquiry

[31] At the time the Note was received, and subsequently when hearing counsel’s submissions about it, the court had very little in terms of reliable evidence to go on. What was known included the following:

(a) During Mr. McKelvey’s evidence-in-chief, the jury heard testimony of extreme violence committed by one or more of the accused inside the McKelvey residence;

(b) Two of the accused are black. Mr. Cain, who is black, was implicated by Mr. McKelvey in some of the extreme violence;

(c) On the afternoon of May 28, 2015, three black men came into the courtroom together, stayed for a short period of time and left; and,

(d) Almost immediately after the black men had been in the courtroom, the court received a note from the jury referencing the men and questioning their safety and security.

[32] The defence concern was that the content of the Note and the reasonable inferences flowing from it, raised the taint of suspicion of prejudice to the fair trial rights of the accused. Specifically, as I have noted, they asserted that there was a reasonable suspicion that the jury could no longer decide the case without sympathy, prejudice, or fear.

[33] Counsel were also particularly concerned about the prospect that the jurors had jumped to conclusions without a proper evidentiary record; that they engaged in improper speculation rather than proper inference based on established primary facts.

[34] Ironically, some of counsel’s stated concerns were also based on speculation; in particular about what might have informed the Note.

[35] In my view, the Note did not raise compelling concerns about impartiality or trial fairness. Having said that, I was satisfied that it gave rise to a reasonable concern that the fairness of the trial might have been compromised, given:

(a) the proximity of the Note to the appearance of the three black men in the courtroom (not to mention the jurors’ express reference to the men in the Note);

(b) the absence of any other objective evidence that might explain the jury’s sudden concern for their safety; and,

(c) the jurors’ express concerns about security and anonymity.

[36] In my view, an inquiry was mandated in the circumstances.

The Parameters of the Inquiry

[37] In terms of the structure of the inquiry, the first obstacle to tackle was the timing of the jury instruction.

[38] A central part of the inquiry involved establishing a factual record of what the jurors saw, or thought they saw, and what if any concerns they had arising therefrom. In my view, in fairness to the jurors, they ought to have a full appreciation of what really transpired before being asked whether they have any concerns about it.

[39] In the result, the instruction attached as Appendix “A” was read to the jurors prior to the inquiry being conducted.

[40] After some discussion with counsel, the following questions were settled on:

Preamble: Last Thursday afternoon I was provided with a note from the jury that referenced three men attending in court. I have several questions to ask you in light of the note. I want to make it clear, again, that you must not share with me any of your thoughts or opinions about this case, the parties involved in it, or any of the evidence we have heard. You must not disclose any discussions that you have had in your jury room regarding this case, or any of the persons involved in it, or any of the evidence you have heard to date.

1. What, if anything, did you see in relation to the three men who attended in the courtroom last Thursday afternoon?

2. What, if any, information did you receive from other jurors about what they saw?

3. Do you have any concerns in light of what you saw, or in light of what you heard others saw, and in light of my instruction to you today?

4. Are your concerns in any way affected by the fact that the three gentlemen who entered the courtroom last Thursday are black?

5. Do you remain able to decide this case impartially, based solely on the evidence heard at trial and on my legal instructions to be provided at the end of the trial and without sympathy, prejudice or fear?

[41] The first two questions were designed to determine what it was that each juror saw, or thought they saw happen when the men came into the courtroom. The next question was designed to determine if each juror had any concerns based on what they had seen, or what others had seen, considered in light of my instruction to them. The fourth question was conditional on the answer to question three. In other words, question four was triggered only if there was a positive response to question three. As things unfolded, no one expressed any concerns and the fourth question was not asked of any of the jurors. The fifth question was the critical inquiry about impartiality, notwithstanding anything that had happened to date in the proceedings.

The Outcome of the Inquiry

[42] Briefly, the jurors responded to the inquiry questions as follows:

Juror 1 indicated that he saw nothing notable with respect to the three men. Someone else mentioned, he thought, that they noticed one of the men had a bandana somewhere on his person. He expressed no concerns and confirmed that he remains able to decide the case impartially;

Juror 2 also advised that she had not noticed anything particular about the three men who came into the courtroom. She said that she heard other jurors mention that the three men might be related to one of the defendants and some discussion about what protects the jurors’ identities once they leave the courtroom. She nevertheless expressed no concerns and confirmed that she remains able to decide the case impartially;

Juror 3 similarly indicated that she did not notice anything in particular about the three men. She heard another juror mention that he or she thought one of the defendants acknowledged the three. She expressed no concerns and confirmed that she remains able to decide the case impartially;

Juror 4 said that she saw nothing of note with respect to the three men. She overheard a couple of the other jurors say that they saw an acknowledgment from one of the defendants. She expressed no concerns and confirmed that she remains able to decide the case impartially;

Juror 5 advised that he had seen one of the defendants turn and acknowledge the three men by way of a nod. He said some of the other jurors concurred. Nevertheless, he indicated that in light of the court’s instructions, he had no concerns and confirmed that he remains able to decide the case impartially;

Juror 6 said that she saw nothing herself. She knew there was some discussion amongst some of the other jurors about the three men, but had not even seen the content of the Note. She expressed no co