COURT FILE NO.: 26/18
DATE: 2019 03 06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JAMES ANTHONY SCORDINO
Amy Stevenson and Nick Chiera, for the Crown
Ari Goldkind and Ryan Mushlian, for the Accused
HEARD: March 5, 2019
REASONS FOR DECISION – VERDICTS TO BE LEFT WITH THE JURY
Conlan J.
I. INTRODUCTION
[1] James Anthony Scordino (“Scordino”) is charged with first-degree murder, contrary to section 235(1) of the Criminal Code, in the death of Angela Skorulski (“victim”) at her residence in Oakville on or about February 13, 2017.
[2] At the conclusion of the Crown’s case, on March 5, 2019, the Defence elected to not present any evidence. The jury was excused to await closing addresses by counsel on March 6th, and the Court and counsel conducted the pre-Charge conference during the afternoon on March 5th.
[3] Prior to then, in fact after the close of the proceedings on March 4th, all counsel were provided with a copy of the draft Charge. As the evidence had not yet concluded and the Court had not yet heard the positions of both sides, out of caution, the draft Charge included all available verdicts for the jury to consider – (i) not guilty of any offence, (ii) not guilty of first degree murder but guilty of manslaughter, (iii) not guilty of first degree murder but guilty of second degree murder, and (iv) guilty of first degree murder.
[4] There were few objections to the draft Charge expressed by counsel at the conference. The only substantive point raised was the Crown’s concern that manslaughter was being left to the jury. The Crown submitted that it should not be left for the triers to consider. The Defence submitted the contrarian view.
[5] For oral reasons given at Court on March 5th, I agreed with the Crown and decided to delete from the Charge any references to manslaughter and accident. I then outlined to counsel how precisely the Charge, including the Decision Tree and the Verdict Sheet, would be amended.
[6] These written Reasons are a supplement to (and not a substitution for) my oral reasons delivered at Court on March 5th.
II. ANALYSIS
The Positions of the Parties
[7] The Crown argued that there was no air of reality to this being an accidental or unintentional killing and, thus, manslaughter was not an appropriate verdict to be left with the jury.
[8] The Defence cautioned the Court against pre-empting (my word) the function of the jury and opined that the triers could accept a theory that is consistent with manslaughter, for example, that there was a struggle inside the victim’s residence between the shooter and the victim, during which the victim’s fingernail was broken (there is evidence of that in the record) and a gunshot projectile hit a window pane (there is evidence of that in the record) and, in the course of the encounter, Ms. Skorulski was shot and died as a result.
The Law
[9] This Court, as the gatekeeper, must be satisfied that there is an air of reality to the verdict of manslaughter. Otherwise, it ought not to be left with the jury. R. v. Chalmers, 2009 ONCA 268.
[10] The issue is whether there is evidence upon which a properly instructed jury acting reasonably could find Mr. Scordino not guilty of first degree murder but guilty of manslaughter.
[11] This is not an onerous threshold to be met. It is not for this Court to impose its views of the evidence on the jury. It is not for this Court to determine whether it is at all likely that the jury would find the facts to be such that a finding of guilt on manslaughter would result. It is not for this Court to usurp the role of the jury.
[12] It is the role of this Court, however, to conduct a limited inquiry as to whether there is an evidentiary foundation for the manslaughter verdict. Any doubt as to whether there is an air of reality ought to be resolved in favour of the accused. R. v. Papasotiriou-Lanteigne, 2018 ONSC 3529, at paragraph 19, citing R. v. Cairney, 2013 SCC 55, at paragraph 22.
[13] Even in cases where the accused testifies and puts forward an explanation that he did not intend to kill the victim but merely to disable him, the judge is entitled to not leave manslaughter as an available verdict for the jury’s consideration, depending upon the accused’s credibility and the rest of the evidence adduced at trial. R. v. Aalders, 1993 CanLII 99 (S.C.C.), cited and explained at paragraph 21 of Papasotiriou-Lanteigne, supra.
The Law as Applied to our Facts
[14] The major issue in our case is the identity of the shooter. Who shot and killed Ms. Skorulski? The next substantive question is whether the murder was planned and deliberate.
[15] For the jury to find Mr. Scordino guilty of manslaughter, it would have to accept that he was the person who shot the victim and, in doing so, that he caused her death unlawfully. Those are the essential elements of the offence of unlawful act manslaughter.
[16] Then the jury would have to decide that Mr. Scordino did not have the state of mind required for murder, or more precisely, the jury would have to be left with a reasonable doubt in that regard. The said state of mind required for murder is that Mr. Scordino meant to kill Ms. Skorulski or to cause her bodily harm that he knew was likely to kill her and was reckless whether she died or not.
[17] Here, given the evidence, and given the absence of any alternative explanation offered by the accused, and given the absence of any other evidence at trial that is capable of positing a different version of how the shooting occurred, that would be a perverse result.
[18] Putting aside rank speculation, the only evidence at trial as to the sequence and placement and manner of the gunshots fired inside the victim’s residence is that of the forensic pathologist, Dr. John Fernandes, whose evidence was filed on consent as an Agreed Statement of Fact which was marked an Exhibit.
[19] A review of Exhibit 11 reveals that this woman was shot in the head multiple times. That is what caused her death. The fourth and final shot that struck Ms. Skorulski was with the barrel of the gun pressed firmly up against the victim’s head. The back of her head. While she was already incapacitated from prior gunshot wounds to the head.
[20] In those circumstances, this can only be taken as an intentional killing. It could not possibly have been an accidental shooting or an unintentional killing. It was, essentially, an execution.
[21] It would be a disservice to the criminal justice system to leave the verdict of manslaughter to the jury on the state of this evidentiary record. There is simply no air of reality to it.
[22] Thus, the decision that I made at Court on March 5th. The jury was left with three available verdicts – (i) not guilty, (ii) guilty of second degree murder, and (iii) guilty of first degree murder.
Conlan J.
Released: March 6, 2019
COURT FILE NO.: 26/18
DATE: 2019 03 06
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JAMES ANTHONY SCORDINO
REASONS FOR DECISION
VERDICTS TO BE LEFT WITH THE JURY
Conlan J.
Released: March 6, 2019