Court File and Parties

COURT FILE NO.: CR-11-1509 DATE: 2017 06 13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Jennifer Goulin, for the Crown

• and -

JORDAN GYABENG Self-Represented Accused

HEARD: November 30, December 1, 5, 6, 7, 9, 12 and 13, 2016, January 20 and 25, 2017

REASONS FOR RULING

(Voluntariness and Improper Closing Address)

RESTRICTION ON PUBLICATION

Pursuant to s. 486.4 of the Criminal Code an order has been made prohibiting the publication, broadcast or transmission of any information that could identify the complainants.

COROZA J.

Overview

[1] On December 13, 2016, a jury found Mr. Gyabeng guilty of sexually assaulting K.P. A sentencing hearing was held on January 20, 2017, and on January 25, 2017, I sentenced Mr. Gyabeng to 12 months in custody followed by probation. I made two rulings during the trial and I promised the parties that I would release reasons to follow. These are my reasons.

[2] Mr. Gyabeng was self-represented throughout the trial. Ms. Goulin prosecuted the case for the Crown.

[3] In this regard, Ms. Goulin acted in the highest traditions of that office. In accordance with its custom, the Crown prosecuted this case fairly and objectively. For example, Ms. Goulin had a second set of disclosure photocopied for Mr. Gyabeng so that he could keep it at the courthouse instead of bringing it back to the jail every evening. Furthermore, Ms. Goulin permitted Mr. Gyabeng to address the jury last, even though he had called evidence on this trial.

Voluntariness of Statement

[4] The Crown sought a ruling that Mr. Gyabeng’s statement to Sgt. Steven Ahrens was voluntary.

[5] On August 2, 2010, Sgt. Ahrens investigated a potential sexual assault. He took a statement from the complainant. As a result of his investigation, two individuals were identified as suspects. Mr. Gyabeng received information that the police were looking for him and he contacted the police officer on August 5, 2010 at about 4:26 p.m.

[6] Mr. Gyabeng was advised that he was going to be placed under arrest for sexual assault, and he agreed to turn himself in to the police. Mr. Gyabeng turned himself in that day, August 5, at 11:54 p.m.

[7] As soon as he was arrested, Sgt. Ahrens testified that he provided Mr. Gyabeng with his rights to counsel and cautions. Sgt. Ahrens read out what was in his notebook. I am satisfied that he complied with Mr. Gyabeng’s s. 10(b) rights.

[8] Sgt. Ahrens testified that at no time did he threaten or make any promises to Mr. Gyabeng. He placed Mr. Gyabeng into the video room at 12:05 a.m. on August 6, 2010.

[9] During the voir dire, Ms. Goulin attempted to play the videotape of the interview. However, Mr. Gyabeng advised me he did not think it was necessary to continue with the voir dire because his statement was voluntary. In a mid-trial ruling, I advised that I would review the videotape and advise the parties if there were any concerns about the statement.

[10] In determining the admissibility of Mr. Gyabeng’s statement, I considered all of the circumstances surrounding the taking of the statement from Mr. Gyabeng to determine whether the Crown has established the voluntariness of the statement beyond a reasonable doubt. There were no threats, promises and inducements. Mr. Gyabeng was clearly of an operating mind. There is no clear evidence that exists on this record which calls into question the voluntariness of the statement.

[11] Mr. Gyabeng is an articulate and intelligent individual. At the outset of the proceedings, I explained to him if the circumstances under which a statement is made raise a reasonable doubt about its voluntariness, it will not be admissible in evidence. I also told him that the Crown bears the burden of satisfying the court beyond a reasonable doubt that the confession was voluntary.

[12] Mr. Gyabeng appeared to understand all of this. It seems to me that Mr. Gyabeng really wanted clarification as to what the Crown wanted to do with this statement.

[13] I advised him that Crown counsel only requested a ruling as to the voluntariness and would not be introducing the statement as part of its case. I also advised him that the Crown could cross-examine on the prior statement if he testified.

[14] After considering (i) the instructions that I gave him; (ii) his explicit submission that the statement was voluntary; and (iii) my review of the statement, the statement was ruled voluntary.

Closing Submissions

[15] Mr. Gyabeng closed to the jury last. Regrettably, his closing was inflammatory. At the conclusion of his closing, Crown counsel applied for a mistrial. One of the Crown’s chief concerns was that some jurors appeared to be crying after Mr. Gyabeng’s closing.

[16] I agree with Ms. Goulin that there were a number of serious transgressions during Mr. Gyabeng’s closings.

[17] First, he told the jury that he had been on the run for six years and he complained about the delay in getting to trial. The problem with this submission is that part of the reason why there was a delay was because Mr. Gyabeng failed to appear for a previous proceeding. That fact was never introduced to the jury. It was unfair for him to raise delay when he contributed to the delay.

[18] Second, he made a number of remarks about Crown counsel that could be interpreted to mean that the Crown was unfairly prosecuting him. As I indicated at the outset of these reasons, Crown counsel was a model of fairness.

[19] Third, he pleaded with the jury to take into account that he was self-represented. Again, this was an unfair comment. I previously told the jury in my opening instructions that the fact that he was self-represented had nothing to do with whether the Crown could prove the case. I advised them not to draw any inference from the fact that he was self-represented.

[20] Fourth, he referred to the fact that he was looking at 2-5 years in the penitentiary. Again, this submission contradicts the instruction I gave to the jury at the outset of the proceeding that punishment or penalty had nothing to do with their task.

[21] Fifth, he referred to the co-accused Peter Akin in this case (Mr. Akin was found not guilty of the charge). This was an improper submission. It was especially concerning because prior to his closing address, Mr. Gyabeng was explicitly told by me that reference to a co-accused and the result of the co-accused’s trial was not a proper submission.

[22] Sixth, he referred to the O.J. Simpson trial. I am unclear as to the purpose of this reference. However, it appeared to be a reference to the fact that Mr. Gyabeng felt that he was being unfairly prosecuted.

[23] After recessing briefly, I decided that a mistrial was not necessary. It seems to me that Mr. Gyabeng would have preferred a mistrial. As I have said, Mr. Gyabeng is intelligent and articulate. Furthermore, just prior to the closing address, he had the benefit of meeting with counsel, Ms. Heath, who was appointed to cross-examine the complainant in this case. Ms. Heath, to her credit, agreed to meet with Mr. Gyabeng to help him prepare his closing. I was confident that prior to the closing, Mr. Gyabeng was given all the tools he needed to fairly present his position to the jury. It is understandable that the Crown took the position that he had caused irreparable harm to the trial process after being afforded every opportunity to present his case in a comprehensive manner.

[24] I was of the view that his closing, while inflammatory, did not cause irreparable harm to the trial process so as to justify the granting of a mistrial. I was of the view that what was required to address Mr. Gyabeng’s inflammatory statements was a clear, unequivocal response and instruction to ignore certain aspects of Mr. Gyabeng’s closing. I gave an immediate, short and sharp instruction at the outset of my charge. I told the jury that they were to ignore certain portions of Mr. Gyabeng’s closing address and I reminded the jury that they would have to discharge their duties by considering only the evidence introduced at trial and the law that I would give them.

[25] In summary, I find the recorded statement that Mr. Gyabeng made to the police on August 6, 2010 is voluntary, and the Crown’s application for a mistrial is dismissed.

Coroza J.

Released: June 13, 2017