COURT FILE NO.: CR-17-90000522-0000
DATE: 20190213
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MIGUEL ORLANDO ZAVALA-MARTINEZ
Defendant
Andrew Choat and Arielle Elbaz, for Her Majesty the Queen
Reid Rusonik, for the Defendant
HEARD: February 6, 2019
REASONS FOR DECISION
DEFENCE APPLICATION FOR A MISTRIAL – ORAL DECISION REASONS TO FOLLOW
allen j.
[1] Following the parties’ submissions on the application I rendered a decision with reasons to follow.
BACKGROUND
[2] Miguel Orlando Zavala-Martinez was convicted by a jury of possession of cocaine for the purpose of trafficking. The Toronto Police Service was involved in an investigation of suspected drug dealing at a Toronto sports bar. The target of this investigation was Mr. Zavala-Martinez. The police entered the bar under a search warrant, arrested him and charged him with possession of cocaine for the purpose of trafficking and possession of proceeds of crime. The jury acquitted him on the proceeds charge.
[3] Mr. Zavala-Martinez was represented at trial by David Rovan. He retained new counsel, Reid Rusonik, for sentencing. He was scheduled to be sentenced when the defence brought this application for a mistrial.
[4] The defence sites as the basis for a mistrial the possibility of ineffective legal assistance by Mr. Zavala-Martinez’s trial defence counsel. Mr. Rovan did not bring a s. 8 Charter of Rights application to challenge the search warrant and the admissibility of the evidence seized. Mr. Rusonik argues that Mr. Rovan’s failure to seek a ruling on the validity of the search warrant and the admissibility of the drugs and proceeds was a failure on his part to effectively assist Mr. Zavala-Martinez.
[5] In support of the application the defence seeks disclosure of background information to the executed search warrant. Previous to the application for the search warrant that was executed, two other applications had been refused. The defence seeks disclosure of the informations to obtain (“ITOs”) and investigative files associated with the ITOs. At the time of the hearing of this application, the defence had received some but not all of the disclosure sought. The defence seeks an opportunity to have disclosure of the remaining disclosure in furtherance of the mistrial application.
ANALYSIS
[6] There is a threshold matter that must be determined before considering the possibility of ineffective counsel. The Crown raises the issue of a trial judge’s authority to alter a jury verdict which would be the result of declaring a mistrial. It is the Crown’s position, supported by case authority, that the trial judge is functus once the jury verdict is given and recorded. On this view, the route open to the defence to challenge the verdict is an appeal.
[7] R. v. Henderson speaks of the sanctity of a jury’s verdict and establishes restrictions on interfering with the verdict: [R. v. Henderson, 2004 CanLII 33343 (ON CA), [2004] O.J. No. 4157 (S.C.C.); appeal refused S.C.C. [2005] without reasons]. The Ontario Court of Appeal held:
A judge’s jurisdiction to alter a jury’s verdict, order a stay or declare a mistrial after a jury verdict is extremely limited. The normal rule is that following the delivery of and recording of a verdict by a jury, the trial judge is functus in respect of that verdict, which cannot be altered, except on appeal. The rule is somewhat different in a judge-alone trial. In that case, where the trial judge has entered a verdict of acquittal, the verdict is final and cannot be subsequently altered by the trial judge. However, where a trial judge convicts an accused but has not yet sentenced him or her, the trial judge is not functus in respect of that charge, and can, in exceptional circumstances, vacate the adjudication of guilt before sentencing [cited decisions omitted].
R. v. Henderson, at para. [29]
[8] Henderson went on to cite the circumstances where a trial judge may alter a jury verdict, holding that the sanctity of a jury verdict is subject to the following narrow exceptions: (a) where the jury does not render the verdict it intended; and (b) where the accused wants to raise the defence of entrapment. Henderson has been cited more recently by the Ontario Court of Appeal and this court: [R. v. Chamot, [2012] O.J. No. 6267, paras. 35 and 38, (Ont. C. A.) and R. v. Taylor, 2011 ONSC 5734, paras. 24, 25 and 27, (Ont. S.C.J.)].
[9] Neither of those exceptions apply in the case before me.
[10] The defence relied primarily on a more recent decision of the Ontario Court of Appeal in R. v. G.C. citing the following passage:
We disagree that the same test to assess ineffective assistance claims on appeal should apply at trial. An incompetence of counsel claim, brought during the course of a trial, should be approached within the principled framework for mistrial applications. Bearing in mind the unique dynamics of each trial, judges need to be left with a broad discretion to manage the trial process. A mistrial is a remedy of last resort, and it falls squarely within the discretion of the trial judge who is in the best position to assess whether such a remedy is needed in order to avoid miscarriages of justices. No new test is necessary.
[R. v. G.C., 2018 ONCA 392, para. 4, (Ont. C. A.)]
[11] R. v. G.C., however, is clearly distinguishable from Henderson. Unlike Henderson, R. v. G.C. was a judge-alone trial where the accused fired his lawyer during his cross-examination, asserting the incompetence of his legal counsel. The Court’s ruling clearly applies to an application for a mistrial under circumstances where the application was brought before the verdict in a trial without a jury.
CONCLUSION
[12] I am functus following the jury’s verdict. The defence’s remedy for its application for a mistrial based on ineffective legal assistance is through the appeal process.
DISPOSITION
[13] The application is dismissed.
Allen J.
Released: February 13, 2019
COURT FILE NO.: CR-17-90000522-0000
DATE: 20190213
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MIGUEL ORLANDO ZAVALA-MARTINEZ
Defendant
REASONS FOR decision
Allen J.
Released: February 13, 2019