Court File and Parties

COURT FILE NO.: CR-17-0359 DATE: 2018 11 02

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HER MAJESTY THE QUEEN v. EMMANUEL BLOWES-SERRATA and BRIAN NELSON

BEFORE: COROZA J.

COUNSEL: Adam Bernstein and Theo Sarantis, for the Crown Sam Goldstein and Sonny Dudani, for Mr. Blowes-Serrata Hussein Aly and Rafik Kodsy, for Mr. Nelson

HEARD: February 7, 2018 to March 8, 2018

ENDORSEMENT - TRIAL RULINGS

Overview

[1] Medad Kenyi was killed in a park behind the Westwood Mall in Malton on September 24, 2015. The Crown alleged that an argument broke out in the park between Mr. Kenyi and a group of men. A physical altercation ensued. It appears that Mr. Kenyi died as a result of blunt force trauma to his head that fractured his skull.

[2] The Crown alleged that Mr. Blowes-Serrata and Mr. Nelson were amongst the group of men that attacked Kenyi. They were charged with manslaughter in connection with Kenyi’s death.

[3] A jury found both men not guilty of the offences on March 8, 2018.

[4] During the trial, four issues arose that I gave rulings on with written reasons to follow: (1) whether jurors would be allowed to ask witnesses questions; (2) the Crown’s request to re-examine Mr. Kabamba on prior consistent statements; (3) the Crown’s request that I permit the introduction of evidence outlining Mr. Blowes-Serrata’s bad character; (4) the Crown’s request that I charge the jury on aiding and abetting in relation to Mr. Blowes-Serrata’s role in the altercation.

[5] As promised, these are my written reasons.

Issue 1: Whether Jurors Would be Allowed to Ask Witnesses Questions

[6] During the trial, the jury was very engaged and alert. During a break in the proceedings and while Mr. Aly (counsel for Mr. Nelson) was in the middle of cross-examining an important crown witness, the jury sent a note requesting clarification of four issues with respect to the witness testimony.

[7] I directed Mr. Aly to cover off the questions the jury asked in the note. It is not necessary for me to repeat the questions. In short, the questions were directed at clarifying the evidence of the witness.

[8] Mr. Goldstein (counsel for Mr. Blowes-Serrata) requested that I go further and invite the jury to submit questions for all witnesses. Mr. Goldstein submitted that since the jurors were the fact finders in this case, they should be permitted to ask questions of the witnesses.

[9] The Crown and counsel for Mr. Nelson disagreed and urged me not to invite the jurors to ask questions.

[10] In the end, I gave the jury a mid-trial instruction (see Appendix A to this endorsement). I did not explicitly tell the jurors that they could not ask questions; but I did not invite them to ask questions during the trial either.

Analysis on Issue 1

[11] I recognize that there is jurisprudence that supports Mr. Goldstein’s argument. As a starting point, it is useful to summarize some of the leading cases in relation to jury questioning.

[12] In R. v. Andrade (1985), 6 OAC 345 (Ont. C.A.): The Ontario Court of Appeal held that a trial judge can permit questions be put to a witness by a juror, so long as the evidence elicited by the question is not inadmissible.

[13] In R. c. Gagnon (1992), 74 CCC (3d) 385 (Que.C.A.): In the course of the trial, and at the crucial moment of cross-examination of the accused as a witness, the trial judge asked the accused nearly 2 hours and 45 minutes of questions posed by the jury, interspersed with questions of his own. The questions pertained to the facts but also tested the credibility of the witness. The Court of Appeal did not approve of this questioning. The Court provided guidelines for jury questioning, that were later affirmed in R. c. Nordyne (1998), 17 CR (5th) 393 (QC C.A.). The conviction was set aside and a new trial ordered.

[14] In R. c. Nordyne: The Quebec Court of Appeal held that a trial judge erred by inviting the jury to ask questions of witnesses and seeking the objections of counsel in the presence of the jury. The Court provided a four step guideline for addressing juror questions.

[15] In R. v. Druken, 2002 NFCA 23, 164 CCC (3d) 115: The trial judge informed the jury at the start of the trial that they would be given a chance to ask questions of witnesses at the conclusion of that witness’ testimony. The trial judge set out the four step procedure: the judge asked whether the jury wished to ask any questions at the conclusion of each witness’ testimony; the questions were put in writing; the judge invited submissions from counsel in the absence of the jury; and the trial judge ruled on whether to allow the question. The Court of Appeal endorsed the trial judge’s instructions and procedure.

[16] In R. v. A.G., 2015 ONCA 159, 124 OR (3d) 758: The trial judge informed the jury that they did not have the right to ask questions. The Ontario Court of Appeal held this instruction to be an error; however, it stated that permitting questions was within the discretion of the trial judge, and questions were only to be permitted rarely. Further, the question asked was properly refused as it sought evidence that was immaterial and unhelpful to the issues. The Court did not give effect to this ground of appeal.

[17] In R. v. Koopmans, 2015 BCSC 2501: The trial judge, following the guidance set out in Druken, provided an instruction regarding the proper procedure for asking questions. The jury followed the procedure after each witness. The second set of juror questions did not seek to clarify but to elicit further information. The court provided a second instruction on the appropriate scope of questioning - that questioning should seek only to clarify not elicit further information. The court reviewed the authorities and provided further guidance on setting limits on questions.

[18] The weight of the authority that I have just summarized affirms Mr. Goldstein’s argument, that, in principle, jurors can pose questions of witnesses. If questioning is permitted then certain limitations are necessary, notably:

1. That the judge informs the jury at the start of the proceedings of the adversarial dynamic and that parties have the freedom to decide their strategy;
2. That it is preferable for the jury to wait until both parties have terminated their questioning before posing questions;
3. That the jury should not be transformed by questioning into a third party (Nordyne, at para. 7); and
4. That the questions first be submitted in writing to the trial judge, who after consulting with the lawyers, decides on their admissibility (Nordyne, at para. 8).

[19] Some of the cases specifically state that it is not recommended that the judge invite the jury to pose questions (Nordyne, at para. 9). The argument is that doing so risks transforming the process into a debate involving the jury as a third party (Nordyne, at para. 11). It also risks alienating jurors whose questions might be refused in the case where there are too many questions posed (Nordyne, at para. 11).

[20] Indeed, in R. v. A.G., our Court of Appeal held that although the practice of permitting questions by jurors is not unknown in Canadian law, it is permitted rarely (para. 66). As I read R. v. A.G., it also emphasizes that the decision to permit jurors to ask questions is a discretionary one. It will often depend on the dynamics of a case.

[21] Mr. Goldstein forcefully argued that permitting jurors to ask questions would keep the jury engaged and keep them alert and attentive. I acknowledge the logic in this submission. However, given the comments of the Court in R. v. A.G. that it is very rare to allow jurors to ask questions, in my view, Mr. Goldstein must persuade me that there is some very real and demonstrable advantage to allowing jurors to ask questions that will assist the jury’s understanding of the evidence they will hear.

[22] In my respectful view, counsel has not persuaded me that this is a case where jurors should be permitted to ask questions. Any perceived benefit in permitting questioning by jurors in this case is clearly outweighed by the following factors:

• Counsel for the Crown and Mr. Nelson were concerned about permitting jurors to ask questions. It seems to me that the fair trial rights of Mr. Nelson and the Crown must also be considered. The fact that defence counsel for both accused did not take the same position is an important factor to take into account.
• If jurors could ask questions of the Crown witnesses, then it would be open for the jury to ask the accused questions (assuming that they testified). In my view, this creates a risk that improper questions could be asked of an accused by jurors.
• Permitting jurors to ask questions in this trial would have certainly lengthened the proceedings. I was told in advance of the trial that some of the witnesses were going to use interpreters. Indeed, when the issue was raised, Mr. Aly was in the middle of cross-examining Mr. Kabamba, a witness who required the assistance of a French interpreter. It was a very difficult exercise.

[23] In the end, I did not invite the jurors to ask questions of witnesses.

Issue 2: The Crown’s Re-examination of Mr. Kabamba

[24] Mr. Kabamba was a primary crown witness. He testified that he witnessed the attack on Mr. Kenyi and he implicated Mr. Nelson in the assault. Mr. Kabamba’s trial testimony was that Mr. Nelson slapped Mr. Kenyi and kicked Mr. Kenyi once around the bicep elbow area.

[25] During a lengthy cross-examination, Mr. Aly (counsel for Mr. Nelson) impeached Mr. Kabamba with a number of inconsistent statements on the issue of whether Mr. Nelson kicked Mr. Kenyi. I will not repeat the various inconsistencies but it is fair to say that after the cross-examination, the jury was very much alive to the fact that Mr. Kabamba had given several previous inconsistent statements on the issue of the kick. There were statements put to him that suggested that he previously told the police and testified in court at the preliminary hearing that Mr. Nelson did not kick Mr. Kenyi.

[26] During the re-examination of his witness, the Crown attempted to re-examine Mr. Kabamba about his prior out of court statements that he had made to the police where he disclosed that Mr. Nelson had, indeed, kicked, Mr. Kenyi.

[27] Mr. Aly objected. Mr. Aly argued that this was oath helping. I disagreed and ruled that Mr. Bernstein could explore this issue to rehabilitate the witness by putting to the witness other parts of the police statement where the witness acknowledged that Mr. Nelson kicked the deceased.

Analysis on Issue 2

[28] In my view, it was proper for the Crown to attempt to clarify and have Mr. Kabamba explain that during the same police interview where he gave a prior inconsistent statement, he, in fact, had also given a consistent statement with his trial testimony.

[29] I will not repeat the analysis that I gave in the oral ruling that I delivered during the trial. However, the jurisprudence holds that there is nothing impermissible about the Crown seeking to explain, clarify or qualify answers given in cross-examination that are considered damaging to the examiner’s case: R. v. Candir, 2009 ONCA 915, 257 OAC 119, at para. 148.

[30] In my view, the Crown was permitted to correct a one-sided picture for the jury by clarifying that in the same statement with which Mr. Kabamba was impeached, the witness did, in fact, provide a statement on the same issue that was consistent and not inconsistent. Correcting the one-sided picture was important because it is the jury who needed to have all that information before them on whether there was an inconsistency in Mr. Kabamba’s prior statement.

[31] In my view, the issue was not one of oath helping. The purpose of the re-examination was to provide a full picture of Mr. Kabamba’s prior statement. The re-examination did not violate the rule that prohibits a party from introducing a prior consistent statement through its own witness.

Issue 3: The Crown’s Request that I Permit Him to Introduce Evidence of Mr. Blowes-Serrata’s Bad Character Before the Jury

[32] Prior to calling the witness Donna Eldridge, the Crown sought a ruling as to whether they could introduce evidence of Mr. Blowes-Serrata’s bad character through Ms. Eldridge.

[33] The Crown argued that Mr. Goldstein’s cross-examination of the crown witnesses, Mr. Membrino and Mr. Kabamba left an inaccurate picture before the jury that Mr. Blowes-Serrata had never slapped anyone before in the park, had never intimidated anyone, and minded his own business when he was present in the park.

[34] The Crown argued that through the cross-examination of these witnesses, Mr. Blowes-Serrata has put his “character” in evidence and therefore requested that it be permitted to:

(a) Elicit from a Crown witness Donna Eldridge evidence about his general reputation in the community for violence, (b) Adduce his criminal record; and, (c) Go behind the criminal record to adduce a synopsis of an incident that occurred at the Westwood Park involving violence.

[35] Mr. Goldstein was opposed. He argued that he did not put his client’s character into evidence. Counsel submitted that if there has been an impression left in the minds of the jury that Mr. Blowes-Serrata is a peaceful man who would not be the type of person who could commit the offence, that impression could be dealt with by way of instructions to the jury.

[36] In a ruling delivered on February 26, 2018, I denied the Crown application. I also held that the ruling was subject to being revisited if the cross-examination of Ms. Eldridge put Mr. Blowes-Serrata’s character in issue or he testified to that effect. Neither happened.

[37] I also accepted Mr. Goldstein’s invitation to provide a specific instruction to the jury about the fact that the personal observations of Mr. Membrino and Mr. Kabamba of Mr. Blowes-Serrata’s interactions with others before September 24, 2015 could not be used as evidence to suggest that he is not the kind of person who would not commit this offence.

Analysis on Issue 3

[38] The law in this area is clear. Evidence of bad character is presumptively inadmissible. Persons are to be tried for what they did, not who they are. There is an exception however, and that is where the accused leads evidence that asserts expressly or by implication that he is not the kind of person to commit the offence. This can occur through the cross-examination of crown witnesses, evidence of general reputation, or the accused’s testimony. As the cases submitted by Mr. Bernstein suggest, the line between legitimate repudiation of the crown’s case and putting character in issue is sometimes difficult to draw: R. v. N.A.P. (2002), 171 C.C.C. (3d) 70 (Ont. C.A.); R. v. W.(L.K.) (1999), 138 C.C.C. (3d) 449 (Ont. C.A.).

[39] After anxious consideration, I agreed with Mr. Goldstein that, in fact, he did not open the door to bad character evidence. The questions asked of Mr. Kabamba seemed to me to be fairly innocuous and were designed to ask Mr. Kabamba about his knowledge of the regulars in the park, including Mr. Blowes-Serrata.

[40] With respect to the cross-examination of Mr. Membrino, in his statement to the police, he went from stating that there were four people who beat Mr. Kenyi, to stating that the only person who used a stick was Mr. Blowes-Serrata. In that context, Mr. Goldstein was entitled to explore and suggest to the witness that he had a motive to lie and deflect attention away from the other individuals because he was afraid of them. The questions Mr. Goldstein asked of the witness elicited answers that suggested that Mr. Membrino was not afraid of Mr. Blowes-Serrata because he personally had not seen him engage in violence at the park. This explanation provides the jury with context to understand why Mr. Membrino resiled from the fact that four people were involved to only Mr. Blowes-Serrata. In other words, he had no difficulty in lying about Mr. Blowes-Serrata’s involvement because he was not afraid of him. In that context, he was repudiating the Crown’s case by specifically attacking the motivation of Mr. Membrino, not attempting to introduce good character evidence before the jury. I find support for this argument in the remedy that Mr. Goldstein proposed. I repeat, Mr. Goldstein was prepared to allow me to instruct the jury that they could not use the answers from the witness to suggest that Mr. Blowes-Serrata was not the sort of person who could commit a violent act.

Issue 4: The Crown’s Request that I Charge the Jury on Aiding in Relation to Mr. Nelson’s Push

[41] During the pre-charge conference, the Crown (Mr. Sarantis), requested that I specifically tell the jury in my charge that if they accepted that Mr. Nelson pushed Mr. Kenyi and he did nothing else, then he was guilty of the offence as an aider and a party to manslaughter.

[42] I declined to instruct the jury in this fashion because in my view, it would have been very confusing for the jury.

Analysis on Issue 4

[43] The Crown’s theory throughout the trial was that the beating of Mr. Kenyi was the result of a joint attack on him by a group of men. The men beat Mr. Kenyi by slapping, kicking and hitting him over the head with branches. The Crown alleged that Mr. Nelson along with Mr. Blowes-Serrata and another individual acted as a co-principals. In short, this was death from a group swarming.

[44] In a very skillful argument, the Crown submitted that if the jury accepted that Mr. Nelson pushed Mr. Kenyi and that Mr. Nelson knew when Mr. Kenyi ended up on the ground that the other individuals were going to continue the attack of Mr. Nelson, then he was guilty of manslaughter (see: R. v. Mariani, 2007 ONCA 329).

[45] The argument of Mr. Sarantis finds support in the comments of Doherty J.A. in R. v. Dooley, 2009 ONCA 910, 249 C.C.C. (3d) 449, leave to appeal refused, [2010] S.C.C.A. No. 83, at paras. 121-123. Doherty J.A. described the necessary connection between the acts of aiding and abetting and the commission of the offence at paras. 123-124:

[123] The authorities take a wide view of the necessary connection between the acts of alleged aiding or abetting and the commission of the offence. Any act or omission that occurs before or during the commission of the crime, and which somehow and to some extent furthers, facilitates, promotes, assists or encourages the perpetrator in the commission of the crime will suffice, irrespective of any causative role in the commission of the crime. The necessary connection between the accessory’s conduct and the perpetrator’s commission of the crime is captured by phrases such as “actual assistance or encouragement” or “assistance or encouragement in fact” or as the appellants argue, conduct that “has the effect” of aiding or abetting. [Citations omitted and emphasis added].

[124] While the phrases set out above, and others, I am sure, could be used to explain the necessary connection between the accessorial act and the perpetrator’s commission of the crime, often the plain words “assistance”, “encouragement” or “help”, without more, will convey the same message.

[46] In my view, in the context of the facts and issues in this case, the suggestion that Mr. Nelson was aiding the attack by pushing Mr. Kenyi to the ground, and that this had the effect of encouraging the others to jump in to beat Mr. Kenyi to death, is speculative. It would have required the jury to scrape together bits and pieces of evidence to draw the inference that the push of Mr. Kenyi had the effect of aiding or encouraging the other perpetrators to continue committing the offence and that Mr. Nelson must have intended to aid or encourage the assault by the others. In my respectful view, on the whole of the evidence, it was not appropriate to instruct the jury that Mr. Nelson was aiding the others in this way. I say this for three reasons.

[47] First, during the pre-charge conference, Mr. Sarantis, with his usual candour, acknowledged that the Crown’s theory was that this was a group beating and that Mr. Nelson acted as a co-principal.

[48] Second, the Crown witnesses – Mr. Kabamba, Mr. Narwal, and Mr. Membrino – do not describe the assault on Mr. Kenyi in this fashion.

[49] Third, a trial judge has a discretion to avoid undue complexity in a jury instruction. As the Court of Appeal has held: “in a criminal trial – particularly a lengthy criminal trial – the trial judge and counsel are entitled to, and should, attempt to narrow the issues to what the trial is realistically about. Nothing is to be gained by proliferating the complexities that a jury is required to deal with unless the added complexity is something that matters in a practical and sensible way”: R. v. Kostyk, 2014 ONCA 447 at para. 49.

[50] In the end, I instructed the jury that depending on their view of facts, if they were satisfied that the accused they were considering was a party to the assault by aiding the people who assaulted Mr. Kenyi it would be open for them to find the accused guilty of manslaughter. I also told them that as a matter of law, to be an aider, the accused would have to know that the others were going to assault Mr. Kenyi and then acted by doing something with the intention of aiding these others. I also explained that the accused would also have the foresight that bodily harm could result from this assault.

[51] However, I did not explicitly put the scenario advanced by Mr. Sarantis to the jury, because in my view, that scenario was speculative.

Coroza J. DATE: November 2, 2018

Appendix A

Mid-Trial Instruction-Questioning by the Jurors

[1] Members of the Jury I told you that I would give you some further direction about your ability to ask questions during the trial. As I told you on Friday, under our law, it is usually Crown and defence counsel who decide which witnesses to call and how to present the evidence. It is my job to make sure that what counsel present may properly be received under our law.

[2] I want to emphasize you are not here to conduct the case for one party or the other. The way a criminal trial works is that it is an adversarial process. Some of you may have heard of a coroner’s inquest and a coroner’s jury. That type of jury is more inquisitorial in nature and in that proceeding jurors are permitted to ask questions. This is a criminal trial and as jurors you are neutral fact finders. You are judges. You are not advocates. It is your job to consider the evidence that counsel present, not to take over the conduct of the case from them. It is their job to decide what questions to ask and how to ask them. It is not the role of jurors to conduct the trial. It is your duty to consider the evidence that is presented, not to decide what questions the witnesses should be asked or how to ask them.

[3] Now, I acknowledge that sometimes a witness may say something that you don’t quite understand. On other occasions you may wish to have something clarified. It is usually best to listen to the rest of the witness’s testimony in case your question is answered later. It may even be answered by another witness. This is why it is generally best simply to be patient and listen closely to all the evidence.

[4] So, in summary, it is really is best to leave the presentation of the evidence to Crown and defence counsel.

[5] A reminder that you may still continue to write notes to me during the trial if there are any other concerns or issues that you want brought to my attention.