COURT FILE NO.: CR-17-0000422

DATE: 2018 11 15

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

A. Esson and S. Ferrone, for the Crown

Respondent

• and -

HASSAN SALIFU

J. Kaldas and R. Wong, for the Respondent

Applicant

HEARD: October 22, 2018

MISTRIAL RULING

D.E. HARRIS J.

[1] Hassan Salifu applied for a mistrial during the course of his trial upon an indictment charging him with the second degree murder of his mother, Galina Alexander. The mistrial was based on what I will refer to as the accused’s “outburst” in court.

[2] After defence submissions, I denied the application without supporting reasons. These are my reasons for the decision. In short, the prejudice to the accused was not substantial. The presumption of jury impartiality and integrity is not easily rebutted. Nothing the jury saw or heard caused irreparable prejudice to the accused’s fair trial interests.

THE OUTBURST IN COURT

[3] This was a two-stage criminal trial. The first stage was the decision of whether the accused was guilty of manslaughter or murder. The second stage, which at the time of the mistrial application had yet to commence, was to determine whether the accused was not criminally responsible at the time of the killing.

[4] The evidence left no doubt that the accused, 23 years old at the time, killed his mother who was 44. The issue on the first stage was whether the Crown had proven the mens rea for second degree murder. The Crown’s case consisted principally of the very serious injuries caused to the deceased, most notably catastrophic injuries to her face and neck injuries implying strangulation. The eye sockets, nasal bones and cheekbones were broken in many places. The pathologist concluded that the cause of death was blunt force trauma to the head and neck compression.

[5] When the outburst occurred, Crown counsel Ms. Esson, was closing to the jury and had been talking for about 15 minutes. She was about a third of the way through her jury speech. For several minutes she had been focusing on the pathology evidence and detailing the deceased’s injuries.

[6] This is the transcript of what occurred:

MS. ESSON:… Because the injuries were in different places, [the pathologist testified] there would have to have been different impacts either simultaneously or at different times.

HASSAN SALIFU: Fuck off, man. Fuck.

MR. KALDAS [defence counsel]: Hassan.

HASSAN SALIFU: Yo, get the fuck away from. Get the fuck away from me. I'll fuck you up. Don’t come near me, eh? Don’t touch me. Don’t fuckin' touch me. I'm fuckin' pissed off. You have fuckin' lied about me in court. How the fuck am I going to -- fuck. You fuckin' killed my mother. You fuckin' killed my mother. You fuckin', fuckin' killed my mother. You fuckin' killed her.

COURT SECURITY OFFICER: We need help in 404.

HASSAN SALIFU: Fuck off. You fuckin' killed her.

COURT REPORTER: Get the jury out.

HASSAN SALIFU: Fuck.

JURY EXITING THE COURTROOM

COURT SECURITY OFFICER: We need back up in 404.

HASSAN SALIFU: Fuck.

COURT SECURITY OFFICER: Back up in 404 now.

HASSAN SALIFU: Do you think it's fuckin' funny, huh? You think this shit is funny? Fuck. You think it's fuckin' funny? Trust me, I dare you to fuckin' touch me. Fuck. And you're still you're acting like I fuckin' did it. You fuckin' people.

[7] After the initial profanities, Mr. Salifu--exceedingly agitated--stood up and in a bellicose and threatening manner, took off the sport jacket he was wearing. When he yelled at defence counsel, he pointed at him in a menacing way. He kicked the prisoner’s box