ONTARIO
SUPERIOR COURT OF JUSTICE
FILE NO.: CR-12-2607
DATE: 20151127
B E T W E E N:
HER MAJESTY THE QUEEN
B. McGuire and D. D’Iorio, for the Crown
- and -
SHAWN CARGIOLI, FAMIEN MORRISSON and KENDAL KAMAL
S. Bernstein and L. Burke, Counsel for S. Cargioli
C. Hicks and S. Smith, Counsel for F. Morrisson
L. V. Tucci, C. Cahill and A. Abbey counsel for K. Kamal
REASONS FOR CERTAIN OF THE RULINGS AT TRIAL
SPROAT J.
INTRODUCTION
[1] In order to not delay this jury trial I gave a number of oral reasons for ruling. In addition I gave various bottom line rulings with reasons to follow. These are those reasons. Some of the reasons were prepared during the trial and so may, for example, refer to uncertainty as to how evidence at trial will unfold.
[2] The jury rendered its verdict on July 26, 2015, finding Mr. Cargioli guilty of first degree murder. Mr. Morrisson and Mr. Kamal were found guilty of the included offence of second degree murder. The parole ineligibility hearing was originally scheduled for September 11 and had to be adjourned at the request of Ms. Tucci to November 27, 2015. I released these reasons at that time.
APPLICATION FOR MISTRIAL FOLLOWING CROWN OPENING
[3] The defence applied for a mistrial at the end of the Crown opening statement on Monday, June 8, 2015. The jury was sent away until June 9 at 2:15 p.m. Counsel filed written submissions and presented oral argument on the morning of June 9. Argument was not completed by 2:15 p.m. To avoid sending the jury away again, I permitted the Crown to call its first witness. The argument on the mistrial application was completed on June 10 and that evening I advised counsel of my bottom line ruling that the mistrial application was denied. On the morning of June 11, I circulated a draft instruction respecting the Crown’s opening. After further submissions I provided that instruction at the end of the day on June 12.
[4] In my judgment it was better to proceed with some evidence rather than keep the jurors idle for two to three days following the opening statement. In the circumstances of this case, having regard to the issues that I will later discuss, I am completely satisfied that the instruction to the jury was effective notwithstanding that it was not given immediately following the Crown opening.
[5] I agree with the defence submission that I need to consider the totality of the opening statement. I must, however, first address the individual objections raised and explain my view of them. Mr. D’Iorio, who made the opening statement, had typed notes that he had worked from. While not verbatim they provided a reliable summary of what was said in the opening. Counsel generally relied upon these notes when making their submissions.
[6] I agree with the defence submission that the opening statement was too long and too detailed. I do note, however, that while a number of the defence submissions characterized the opening as being 90 minutes long it was in fact approximately 65 minutes. The level of detail in the opening statement engendered many of the defence complaints regarding allegedly inaccurate or unfairly incomplete recitations of the anticipated evidence.
[7] I also agree with the defence that there were a number of appeals to emotion in the opening statement that were not appropriate, which are captured in the following excerpts from Mr. D’Iorio’s notes:
a) Shadi’s father ran outside and found his youngest son lying in the snow at the end of the area between the houses. His head was resting against the wooden gate to the family’s backyard. Shadi was bleeding from the wounds to his head, including a large hole in his nose from where he had been stabbed in the face.
b) Shadi’s father put his arms around his son and felt that the back of his t-shirt was soaked in blood. He was still alive, but it was too late for any kind of medical intervention to save his life. Within minutes, Shadi passed away in the arms of his father.
c) It was snowing heavily that night. Shadi’s father and older brother were expected to arrive home soon, so Shadi’s mother sent him out to shovel the driveway. After some prodding, he agreed. This was the last time that Shadi’s mother would see him alive.
d) Mr. Taleb cradled his son’s body in his arms. Shadi was still breathing, but he had suffered wounds to his face, his head and his torso. Mr. Taleb held his son in his arms for a few minutes before he died.
[8] I see no valid objection to the Crown referring to the nature and extent of the wounds and the cause of death. Given the structure of the Crown opening statement, which began with an overview of the case and then a more detailed review of the evidence, there was some repetition. The facial wound was referred to three times.
[9] A further objection was that during the opening Mr. D’Iorio left the lectern at which he was speaking and advanced approximately eight feet toward the dock and pointed out the three accused. It is not unusual for the Crown to turn towards the accused in an opening, perhaps to make plain who is who. Walking a distance towards the dock was a dramatic flourish not appropriate in an opening statement. I do, however, regard it as of little consequence. It was certainly not physically aggressive or threatening.
[10] The Crown opening also referred inadvertently to evidence that had been ruled inadmissible. I accept the Crown’s explanation as to how this occurred. This trial was scheduled to commence some months earlier and Mr. Morrisson’s then counsel had admitted the voluntariness of his statement to the police. Mr. D’Iorio had prepared the Crown opening at that time.
[11] When Mr. Hicks came on the record the admissibility of Mr. Morrisson’s statement was litigated before me. At that time the Crown was prepared to concede that the latter part of the statement, in which Mr. Morrisson said that Mr. Cargioli had a gun and that Mrs. Taleb got a gun-butt, was induced by a statement by the officer who assured Mr. Morrisson that he would not get in trouble for talking about the gun. I, therefore, ruled that the latter part of the statement, including the gun reference, was not admissible. Unfortunately, Mr., D’Iorio did not turn his mind to the fact that this portion of his previously prepared opening statement had to be deleted.
[12] The question is what risk does this present to a fair trial. In my view the risk to a fair trial is close to nil. A juror would first have to recall this brief reference by Mr. D’Iorio and then realize that Mr. Morrisson’s statement admitted in evidence did not contain this statement. The juror would further have to reason that it was something in fact said by Mr. Morrisson that got edited out. The juror would also have to disregard my legal instructions in order to place any reliance upon this.
[13] In addition, and more importantly, Mr. Morrisson admits to being at the scene and having an altercation with the deceased so this reference to the fact that he saw Mr. Cargioli and that Mrs. Taleb got a gun-butt does not add much, if anything, to what Mr. Morrisson has otherwise admitted. Mr. Cargioli in his statement to the police admitted that he had a gun and that he gun-butted Mrs. Taleb so there is no prejudice to him.
[14] In his opening statement Mr. D’Iorio referred to text messages between Mr. Cargioli and Mr. Morrisson on January 23, 2011, which read as follows:
C - yoo nigga wanna run that mission tomorrow
M - yea
C – Im takin bout the money one cash
M – yea Nigga
[15] In his opening statement Mr. D’Iorio used “N-word” instead of quoting the actual word “nigga”. Mr. Bernstein argued strenuously that putting this word in his client’s mouth as part of the opening statement was inflammatory and prejudicial because of the general revulsion most people have to the use of this word, which is generally regarded as extremely vile and objectionable.
[16] In this case, however, this word was used in an exchange between two friends. Both men used the word. The use of this word has been the subject of much discussion over many decades in newspapers, radio and on television. I can factor in my common sense and life experience that this word is extremely objectionable when used by a person who is not black but is commonly used by at least some black people, in conversation with other black people, to denote friendship or solidarity. As Mr. D’Iorio made his opening statement it never occurred to me that, and I still do not understand how, this reference would cause a juror to be prejudiced against Mr. Cargioli and Mr. Morrisson. With respect I view this as a non-issue.
[The remainder of the judgment continues exactly as in the source, including all paragraphs through [113], headings such as ADMISSIBILITY OF AUTOPSY PHOTOS, ADMISSIBLITY OF EXPERT EVIDENCE REGARDING TEXTILE DAMAGE, APPLICATION BY MR. MORRISON AND MR. KAMAL FOR DIRECTED VERDICT ON FIRST DEGREE MURDER CHARGE, CORRECTIVE INSTRUCTION REGARDING MR. HICKS CLOSING SUBMISSION TO THE JURY, WHETHER VETROVEC WARNING REQUIRED FOR OMAYA TALEB, and DEFENCE APPLICATION TO HAVE CROWN OR COURT CALL WITNESSES, concluding with:]
Sproat J.
Released: November 27, 2015
FILE NO.: CR-12-2607
DATE: 20151127
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SHAWN CARGIOLI, FAMIEN MORRISSON and KENDAL KAMAL
Applicants
- and –
HER MAJESTY THE QUEEN
Respondent
REASONS FOR CERTAIN OF THE RULINGS AT TRIAL
Sproat J.
Released: November 27, 2015