CITATION: R. v. Golov, 2017 ONSC 7063
COURT FILE NO.: CRIMJ(P) 1931/16
DATE: 2017 11 27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
A. Esson, A. Berg, for the Respondent
Respondent
- and -
SEM GOLOV
L. Shemesh, for the Applicant
Applicant
HEARD: November 24, 2017, at Brampton
RULING ON APPLICATION FOR MISTRIAL
André J.
[1] The defence brings an application for a declaration of a mistrial following the Crown’s closing address to the jury. Defence counsel contends that the Crown’s numerous misrepresentations of the evidence, inaccuracies and misstatements mandate such a remedy to prevent a miscarriage of justice.
BACKGROUND
[2] On August 7, 2015, Mr. Golov fatally stabbed William Maassen at the back of a Mississauga plaza. Fifteen-year-old Jack Kryslak-Gallant, the only eyewitness to the incident, testified that while riding away from the scene, he saw Mr. Golov repeatedly punch Mr. Maassen in the upper chest area. Mr. Maassen doubled up and clutched his stomach with both hands.
[3] Mr. Golov testified that he stabbed Mr. Maassen in self-defence after he had unsuccessfully tried to stop Mr. Maassen from strangling him.
[4] The police charged Mr. Kryslak-Gallant on August 27, 2015 with Mr. Maassen’s murder. They subsequently withdrew the charge. In his initial statement to the police, Mr. Kryslak-Gallant denied any knowledge of the incident and falsely indicated that he was with a friend on August 7, 2015. The police subsequently arrested Mr. Kryslak-Gallant’s friend. They later charged Mr. Kryslak-Gallant with obstruct justice. Mr. Kryslak-Gallant then gave a second statement to the police on October 2, 2015 in which he described what he had seen on August 7, 2015. During the trial, Mr. Kryslak-Gallant testified that he knew that if he assisted the police in its case against Mr. Golov, the police would withdraw the charge against him.
[5] In her closing address to the jury, defence counsel advised the jury to disregard Mr. Kryslak-Gallant’s evidence given its internal inconsistencies, his prior inconsistent statements, his motivation to lie about what had happened and the fact that he was an unsavoury witness. The Crown, in her closing address, submitted that much of Mr. Kryslak-Gallant’s evidence in the trial was confirmed by surveillance evidence, photographs and by the testimony of Mr. Golov himself.
GOVERNING PRINCIPLES
[6] A mistrial may be appropriate where such a remedy is necessary to prevent a miscarriage of justice: see R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857, at para. 75; R. v. Chaisson, 2009 ONCA 789. However, mistrials are a remedy of last resort and should only be declared to avoid miscarriages of justice: R. v. A.G., 2015 ONCA 159, 124 O.R. (3d) 758, at para. 50; R. v. Clause, 2016 ONCA 859, at para. 35.
[7] In R. v. Melvin, 2017 NSSC 273, at para. 31, the Nova Scotia Supreme Court noted that:
A successful application for a mistrial is an acknowledgement that a fundamental flaw in the trial process has arisen. In such cases, there is no remedy but to prematurely conclude the trial, with a view to starting from scratch at some future point. It is, therefore, a remedy to which especially serious consideration must be given.
[8] A mistrial should only be granted “in the clearest of cases” where there is a fatal wounding of the trial process. A “fatal wounding” of the trial process is “a wounding to the administration of justice which cannot be cured by remedial measures”: R. v. Paterson (1998), 1998 CanLII 14969 (BCCA), 122 C.C.C. (3d) 254 (B.C.C.A.), at para. 93 citing R. v. Lawson (1991), 1991 CanLII 194 (BCCA), 1 B.C.A.C. 204, at p. 209.
[9] A decision on whether an incident has affected trial fairness in a way which would warrant declaring a mistrial must take into account any corrective measure which has been brought or could be brought by the judge to remedy the irregularity: see R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 80.
[10] In R. v. A.T., 2015 ONCA 65, 124 O.R. (3d) 161, at paras. 26-28, the Court of Appeal noted the following:
[26] The Crown occupies a special position in the prosecution of criminal offences, which "excludes any notion of winning or losing" and "must always be characterized by moderation and impartiality": R. v. Boucher, 1954 CanLII 3 (SCC), [1955] S.C.R. 16, [1954] S.C.J. No. 54, per Rand J., at p. 24 S.C.R., and Taschereau J. (in translation), at p. 21 S.C.R. Crown counsel "must limit his or her means of persuasion to facts found in the evidence presented to the jury": R. v. Rose (1998), 1998 CanLII 768 (SCC), 40 O.R. (3d) 576, [1998] 3 S.C.R. 262, [1998] S.C.J. No. 81, at para. 107.
[27] As this court summarized in R. v. Mallory, [2007] O.J. No. 236, 2007 ONCA 46, 217 C.C.C. (3d) 266, at para. 340, Crown counsel in the closing address should not "engage in inflammatory rhetoric, demeaning commentary or sarcasm, or legally impermissible submissions that effectively undermine a requisite degree of fairness".
[28] In R. v. B. (R.B.), [2001] B.C.J. No. 45, 2001 BCCA 14, 152 C.C.C. (3d) 437, the British Columbia Court of Appeal discussed, at para. 15, the rationale for holding Crown counsel to this standard:
It takes no skill to whip up feelings against the accused in a case like this and it threatens the integrity of the trial. Applying opprobrious labels to the accused, as was done here, does nothing to advance the case; instead it cheapens the dignified position that the Crown should occupy in criminal law.
[11] The Supreme Court of British Columbia also noted in R. v. Brown, 2009 BCSC 1870, at para. 8 that:
It is particularly important that Crown counsel not inform the jury about the Crown's investigation or charging practices and policies. This factual information is not part of the evidence and could leave the jury with the impression that the accused is guilty because the Crown has investigated the matter thoroughly and decided a charge is justified.
ANALYSIS
Has there been a “fatal wounding” of the trial process which cannot be cured by remedial measures in this case?
[12] Defence counsel vigorously asserts that this is the case in this trial. She points to the following statements made by the Crown to the jury which she claims would inexorably lead to a miscarriage of justice, if the remedy she seeks is not granted:
(1) The Crown stated that Mr. Golov’s DNA was not found on the palms of Mr. Maassen’s hands thereby casting serious doubt on Mr. Golov’s testimony that Mr. Maassen had tried to strangle him.
(2) The Crown erroneously suggested to the jury that Mr. Kryslak-Gallant could not have been convicted of any criminal offence and therefore he had no reason to fear prosecution before he gave a statement to the police.
(3) The Crown advised the jury that Mr. Golov testified that he had no marks on his neck.
(4) The Crown erroneously stated to the jury that Mr. Golov testified that he was wearing a white t-shirt when he stabbed Mr. Maassen.
(5) The Crown erroneously stated that considerable force had been used to inflict the fatal wound.
(6) The Crown implied that Mr. Golov had cleaned up his testimony in re-examination by claiming that Mr. Maassen was 2 to 3 feet away when he tried to strangle him.
(7) The Crown misrepresented the distance between the eastern edge of the plaza where Mr. Kryslak-Gallant claimed to have made his observations and the area at the back of the plaza where the stabbing took place.
(8) The Crown erroneously told the police that Mr. Kryslak-Gallant had seen bloodstains on the concrete pavement where the stabbing took place.
[13] In my view, the errors complained about, if they can all be construed as such, do not constitute, individually or cumulatively, a fatal wounding of this trial such that the only remedy is a mistrial. I say so for the following reasons:
Defence counsel contends that pursuant to an agreed statement of facts, the Crown should have told the jury that no DNA blood belonging to anyone had been found on Mr. Maassen’s hands.
[14] However, paragraph 14 of the agreed statement of facts states that:
DNA samples were taken from Mr. Maassen’s hands. Only his own DNA was found there.
[15] The Crown read to the jury paragraph 14 of the agreed statement of facts. She then advised the jury that if Mr. Golov was clawing at Mr. Maassen’s hands, as he claimed, one might have expected to find his DNA on Mr. Maassen’s hands.
[16] I agree with the defence that it was wrong for the Crown to link the absence of Mr. Golov’s DNA on Mr. Maassen’s hands, as proof that Mr. Maassen never had his hands around Mr. Golov’s neck. There is no expert evidence that had Mr. Maassen’s hands made contact with Mr. Golov, the latter’s DNA would be evident on Mr. Maassen’s hands. The absence of Mr. Golov’s DNA on Mr. Maassen’s hands does not, in any way, shape or form, disprove Mr. Golov’s evidence that Mr. Maassen tried to strangle him and that he, Mr. Golov, acted in self-defence.
[17] In my view, the Crown did not deliberately try to mislead the jury. She clearly believed that paragraph 14 of the agreed statement of facts permitted her to make her submission to the jury. This error can be corrected by a strong caution about paragraph 14 of the agreed statement of facts and the Crown’s closing address. This error by the Crown in my view, on its own or in combination with others, does not justify a mistrial in this case.
[18] Defence counsel submits that the Crown intentionally misled the jury by stating that Mr. Kryslak-Gallant would not have been prosecuted or convicted of any offence before he gave a statement to the police.
[19] Upon reviewing the recording of what the Crown stated to the jury, I find that the Crown committed no such error. The Crown correctly advised the jury that Mr. Kryslak-Gallant could not be successfully prosecuted for murder given that he was not involved in the stabbing. Furthermore, in advising the jury that Mr. Kryslak-Gallant could not be prosecuted or convicted of an offence, the Crown qualified her statement by noting “with the possible exception of the obstruct charge”. There is no question that Mr. Kryslak-Gallant believed, prior to October 2, 2015, that he could be prosecuted for obstruct justice. Similarly, there is no question that he believed he would get a benefit, by giving a statement to the police. In my view, a caution to the jury regarding Mr. Kryslak-Gallant’s belief and its significance to his statement can correct this statement by the Crown to the jury.
[20] The Crown told the jury that Mr. Golov testified that he did not have any marks on his neck after the incident. A review of Mr. Golov’s testimony in cross-examination reveals that while Mr. Golov testified that he had no internal injuries, he also testified that he could not recall if he had any marks on his neck. Given my admonition to the jury that what counsel say in their closing addresses is not evidence, and that they are the judge of the facts, this submission by defence counsel does not warrant the declaration of a mistrial.
[21] Defence counsel contends that the Crown misstated the evidence when she told the jury that Mr. Golov was wearing a white t-shirt at the time of the stabbing which he subsequently washed to remove bloodstains on the shirt.
[22] Mr. Golov testified in cross-examination that he wore a two toned t-shirt during the stabbing. He also testified however, that he was wearing a white t-shirt during the event. He further testified that he did not know what shirt he changed to. A surveillance camera captured an image of Mr. Golov wearing a white t-shirt when he entered a TD Bank at the plaza. Another captured him wearing a two-toned shirt when he entered his father’s building after the stabbing.
[23] Given Mr. Golov’s conflicting testimony about the issue, I cannot conclude that the Crown intentionally misstated Mr. Golov’s testimony to the jury.
[24] The Crown told the jury that Mr. Golov used “considerable force” to inflict the fatal wound. This opinion is based on the pathologist’s testimony that the fatal stab wound perforated Mr. Maassen’s heart.
[25] Defence counsel is correct that the Crown’s categorization of the force used to stab Mr. Maassen is not borne out by the evidence. Dr. Ashwyn Rajagopalan testified that he could not determine the amount of force used to inflict this injury.
[26] The jury has the benefit of the pathologist’s testimony and his report. At the most, the jury can be cautioned that there is no evidentiary basis for the Crown’s statement regarding the force used to inflict the fatal wound.
[27] Defence counsel contends that the Crown gave the jury the impression that Mr. Golov cynically tailored his evidence in re-examination about the distance between himself and Mr. Maassen when he was being choked. Mr. Golov testified in-chief that after failing to get Mr. Maassen to release him, he pulled out his knife, blindly swung and slashed at Mr. Maassen. Under cross-examination, Mr. Golov repeatedly testified that Mr. Maassen was “right up” to him when he, Mr. Golov, repeatedly swung and slashed wildly at Mr. Maassen. The Crown put to Mr. Golov that it was impossible that he could have done so when the two were so close together. Asked in re-examination to “clarify” the distance between himself and Mr. Maassen, Mr. Golov then indicated with his hands extended in front of him, that Mr. Maassen was 2 to 3 feet away when his hands were around Mr. Golov’s neck.
[28] In my view, it was appropriate for the Crown to submit to the jury that Mr. Golov had tailored his evidence in re-examination, to explain why it was possible for him to have swung and slashed wildly at Mr. Maassen. The Crown did not act improperly when it asked the jury to disbelieve Mr. Golov’s account of how he stabbed Mr. Maassen. In my view, this part of the Crown’s closing address to the jury does not constitute grounds to declare a mistrial.
[29] The Crown also told the jury that the distance between the eastern edge of the plaza and the end of the alley way or catwalk was 359 feet, rather than 208 feet as Detective Hofstetter, who took measurements of the scene, testified. This is clearly an inadvertent error by the Crown, which will not mislead the jury. A photograph of the scene which was entered as an exhibit on consent, shows the distance between these two points. Furthermore, the jury will be instructed that it is their recollection of the evidence, not that of the Crown, defence counsel or the court, that matters. This error on the part of the Crown cannot justify, either individually or cumulatively, a mistrial in this case.
[30] Defence counsel further submits that the Crown erroneously suggested to the jury that Mr. Kryslak-Gallant could see or saw bloodstains on the pavement. However, there is no indication that the Crown said this to the jury. Indeed, the Crown repeatedly told the jury that Mr. Kryslak-Gallant looked back while riding away and saw Mr. Golov repeatedly punch Mr. Maassen.
[31] The defence also raised the spectre, based on a letter written by the main investigating officer in this case, that Mr. Kryslak-Gallant gave a third statement which was not disclosed to the defence. The Crown however, has indicated that no such statement exists.
[32] In my view, whatever transgressions the Crown is alleged to have committed in her closing address can be addressed by a limiting instruction which deals with the alleged transgressions. As noted by LeBel J. in Khan, at para. 82:
[W]e should not presume that jurors are incapable of following instructions given by the judge. On the contrary, when the judge issues a clear and forceful warning about the use of some information, we are entitled to presume that it diminishes the danger that the jury will misuse this information when rendering its verdict.
CONCLUSION
[33] For the above reasons, the application for a mistrial is dismissed.
André J.
Released: November 27, 2017
CITATION: R. v. Golov, 2017 ONSC 7063
COURT FILE NO.: CRIMJ(P) 1931/16
DATE: 2017 11 27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
SEM GOLOV
RULING
André J.
Released: November 27, 2017