Court File and Parties

COURT FILE NO.: CR-17-92 DATE: 20190503 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – EBENEZER AMPADU, JILLIAN CLARE, JAMES PANICCIA and JULIAN ZENCZUK Defendants

Counsel: Indy Kandola and Frederick Temple for the Crown Jessica Sickinger for Mr. Ampadu Leo Kinahan for Ms. Clare Daniel MacAdam for Mr. Paniccia Salvatore Caramanna and Anthony Bugo for Mr. Zenczuk

HEARD: May 1, 2019

Ruling on Jury Instruction re Directed Verdicts

BOswell J.

[1] This ruling addresses the issue of what a jury should be told when directed verdicts and stays of proceedings are granted against some, but not all, defendants in a joint trial.

Overview

[2] Street fights are not uncommon in urban downtown areas on weekends when bars let out at closing time. Despite their prevalence, there is very little to recommend them. They mar the reputation of the downtown, they make people fearful and they result in injuries.

[3] This case is yet another example of a one-punch manslaughter, occurring in the context of a group confrontation after closing time.

[4] Three adult males left the Tic Tac bar in downtown Bradford at 2:00 a.m. on a Friday night. They were not looking for trouble. But they stepped in it anyway.

[5] The three males did not have far to walk to get home. Metres short of their destination, they were passed by a car. Words were exchanged between the passengers of the car and the men on the road. The car made a U-turn and came back to stop just beyond the men on the street. A conflict followed that left one of the pedestrians with a broken wrist and another with a head wound that would claim his life within several weeks.

[6] Four of the occupants of the car were charged, jointly, with assault with a weapon, assault causing bodily harm and manslaughter. Their trial commenced in mid-March. The Crown’s case in chief concluded on April 23, 2019. The next day I heard applications from all defendants for directed verdicts of acquittal on all counts, save for a concession made by Mr. Zenczuk that there was sufficient evidence in the record to warrant the case of manslaughter against him remaining with the jury.

[7] On April 28, 2019 I released a ruling on the defence applications. All of them had partial success. Directed verdicts were granted as follows:

(a) On the manslaughter charge against Mr. Ampadu and Mr. Paniccia;

(b) On the assault causing bodily harm charge against Mr. Zenczuk and Ms. Clare; and,

(c) On the assault with a weapon charge against all four defendants.

[8] Following the directed verdict ruling, the Crown elected to stay any further proceedings against Mr. Ampadu and Mr. Paniccia.

[9] Counsel for Mr. Zenczuk raised a concern with the court about what the jury should be told about the directed verdicts and the stay of proceedings.

Positions of the Parties

[10] On behalf of Mr. Zenczuk, Mr. Caramanna submitted that nothing should be said to the jury about the reasons that explain why Mr. Ampadu and Mr. Paniccia are no longer part of the proceedings. In his view, the jury should simply be told (1) that Mr. Paniccia and Mr. Ampadu are no longer part of the proceedings; (2) that they should not speculate about why that is; (3) that the remaining defendants are entitled to the presumption of innocence; and (4) the remaining defendants must be considered separately, without regard to the two who have been discharged.

[11] Mr. Caramanna raised the concern that if the jury is told that directed verdicts have been granted and that the Crown has stayed proceedings against Mr. Ampadu and Mr. Paniccia, there will be an “elephant in the room”, creating a risk that the jury will speculate in a way significantly prejudicial to the defendants. Such speculation may well include:

(a) An inclination on the part of the jury to believe that the reason two defendants have been discharged and two remain is that the case is stronger against the two who remain and weaker against the two who were discharged;

(b) The jury may improperly reason that the court believes the case against the remaining two defendants is stronger; and/or,

(c) The jury may improperly reason that the Crown believes the case is stronger against Ms. Zenczuk and Ms. Clare than it was against Mr. Paniccia and Mr. Ampadu and that is why the remaining charges have been stayed.

[12] Mr. Caramanna argued that the court has a discretion in terms of how the jury is instructed when there are multiple defendants in play to ensure trial fairness. In his view, for the reasons expressed, the jury should be told nothing about why Mr. Paniccia and Mr. Ampadu are no longer in the proceedings, but should be cautioned not to speculate about why.

[13] The Crown’s position is that the jury should be instructed about the directed verdicts in accordance with the Supreme Court’s direction in R. v. Rowbotham, [1994] S.C.J. No. 61. They should also observe the Crown directing the registrar to enter stays against Mr. Paniccia and Mr. Ampadu on count 3. The Crown is entitled to stay proceedings at any time. The jury should be aware that it was the Crown’s decision to stay further proceedings, so as not to give rise to any potentially prejudicial speculation about how proceedings against Mr. Ampadu and Mr. Paniccia came to an end.

Discussion

[14] The argument of this issue was relatively brief and to the point. I let counsel know of my decision immediately, which was to proceed as follows: (1) to instruct the jury in accordance with the directions in Rowbotham; (2) to have the Crown direct the court to enter the stays against Mr. Ampadu and Mr. Paniccia in the presence of the jury; and (3) to provide the jury with a cautionary instruction. The content of the instruction ultimately given to the jury is attached at Appendix “A”.

[15] I indicated to counsel that I would provide brief, written reasons for my decision. These are those reasons.

[16] As I expressed to Mr. Caramanna following my ruling, I was able to decide it quickly, not because his arguments were without merit, but because the solution in my view was clear.

[17] I begin with a number of basic premises.

[18] First, jurors are judges of this court until the conclusion of the case. They alone are the judges of the facts.

[19] Second, the accused were all arraigned on three counts. The jury was officially put in charge of the accused, on those counts, when the case began.

[20] Third, one of the functions of a trial judge in a jury trial is to aid, as much as possible, juror comprehension of the proceedings and the issues they must decide: see, generally, R. v. Poitras, [2002] O.J. No. 225 (C.A.).

[21] Fourth, jurors are presumed to have the capacity to understand and follow the explicit instructions of the trial judge: see R. v. Corbett, [1988]1 S.C.R. 670; and R. v. Suzack (2000), 141 C.C.C. (3d) 449 (C.A.).

[22] I agree with Mr. Caramanna’s observation that there would be an “elephant in the room” should the jury return to the courtroom to find two of four defendants are no longer a part of the proceedings. Obviously something needs to be said to address the departure of Mr. Ampadu and Mr. Paniccia. The question is what is best?

[23] In my view, any instruction given to the jury on this issue must (1) respect their role as judges of the facts of this case; (2) aid in their comprehension of the proceedings; and (3) avoid any prejudice that may arise as a result of speculation or improper reasoning based on the discharge of two of the defendants. I will examine these aspects of a proper instruction in turn.

Respecting the Role of the Jury

[24] In jury trials there is a clear division of responsibility between judge and jury. It is the judge’s function to determine questions of law and it is the jury’s function to determine questions of fact and render verdicts. Where charges are withdrawn from the jury and verdicts entered by the trial judge, that division of responsibility risks being blurred.

[25] In Rowbotham, the Supreme Court gave very explicit instructions regarding the manner in which a directed verdict should be addressed with a jury. Lamer, C.J., as he then was, held that in situations where the court has made an order for a directed verdict of acquittal, the jury should be instructed as follows:

As a matter of law, I am withdrawing the case from you and I am entering the verdict I would otherwise direct you to give as a matter of law.

[26] Mr. Caramanna correctly observed that Rowbotham was a case where directed verdicts of acquittal were granted against all defendants. Accordingly, there was no prospect of residual prejudice against defendants who remained in the proceedings. He submitted that in cases where there are multiple defendants and where some, but not all, of the defendants are entirely acquitted, the court retains the discretion to fashion an instruction that will avoid any prejudice accruing to the defendants remaining in the proceedings.

[27] It is hard to argue against Mr. Caramanna’s submission. The court must of course be wary about prejudice arising against the remaining defendants. They are constitutionally entitled to a fundamentally fair trial. That said, the issue in Rowbotham concerned a change in a procedural convention. Until that case, it had been common for judges to actually direct juries to return with an acquittal where defence counsel had been successful on a directed verdict application. Problems occasionally arose when juries expressed concerns about whether the accused person(s) should actually be acquitted. To avoid any such issues, the Supreme Court modified the former common law procedure and directed trial judges to instruct jurors in the manner I set out above.

[28] Put into the context of this case, under the old common law method of proceeding, I would have directed the jury to return with the verdicts of acquittal that I determined should be granted on the defence applications. That would have been the method by which the directed acquittals were entered. According to the method introduced in Rowbotham, instead of directing the jury to give particular verdicts, I am directed to advise the jury that I have withdrawn the case (or certain parts of it) from them and I have entered the verdicts I otherwise would have directed them to return. In other words, the Rowbotham method has been approved as an acceptable substitute for having the jury actually directed to return a verdict of acquittal. As a matter of procedure, I do not believe I can simply tell the jury nothing. In my view, I am bound to follow the procedure directed in Rowbotham, even if there are remaining defendants.

Aiding in Comprehension

[29] Jurors have a difficult task. They typically have no legal training and, apart from what they may have seen on television, they have no sense of how trials really work.

[30] In this case the jury has had before them, for the better part of six weeks, four accused persons jointly charged with manslaughter, assault with a weapon and assault causing bodily harm. I explained to them in advance of the trial the general procedure we would be following in the case. Suddenly, at the end of the Crown’s case, two of the four defendants are leaving the proceedings altogether and the remaining two will now face only one count. The jury is naturally going to be puzzled about that turn of events.

[31] In my view, as a matter of basic respect, the jurors deserve some explanation about what is going on. But more than that, providing them with some basic information about what has happened and how it impacts on their role, can only aid them in their comprehension of the proceedings and their place in it. Anything that can be done to enhance juror comprehension has the combined effect of improving jurors’ experiences and, more importantly, improving our collective sense that jurors are getting it right.

Avoiding Prejudice

[32] Both Crown and defence counsel recognize the risk of prejudice that arises as a result of the fact that two of four defendants are being released from the proceedings, while the other two are not. There is certainly a risk that the jurors may speculate about why the case came to an end for Mr. Paniccia and Mr. Ampadu but not for Ms. Clare and Mr. Zenczuk. They may indeed improperly reason, as Mr. Caramanna warned, that the Crown and/or the court believes the Crown’s case is stronger against the remaining two defendants. Or they may improperly reason, as Mr. Kandola warned, that the case is inherently weak because two defendants have already been discharged.

[33] It is important to appreciate, however, that the risk of speculation and/or improper reasoning arises by virtue of the fact that two of the defendants are now gone. It does not arise as a result of the procedure directed in Rowbotham. In my view, not providing some explanation to the jury as to why two of the defendants are gone increases the risk of speculation, rather than attenuates it.

[34] Reasonable people may well differ about how best to attenuate the risk of prejudice to Mr. Zenczuk and Ms. Clare. But in my view, explaining to the jury that the court has withdrawn certain charges from them as a matter of law and having them witness the Crown directing a stay on certain charges provides them with at least some minimal explanation as to what is happening. This procedure has merit in my view, quite apart from the fact that I believe I am bound to follow Rowbotham in any event. This procedure, on its own, would certainly not be sufficient to attenuate any potential prejudice of the sort identified by counsel. But it would provide some control. It will help the jury understand what has happened with Mr. Paniccia and Mr. Ampadu and put into context the further instruction that I propose to give them.

[35] The additional instruction will then explain to the jury that they must not speculate about why certain charges were withdrawn or stayed. The jury will be reminded that each defendant must be considered separately and that guilt or innocence is personal and individual. They will be instructed that as between the Crown and Mr. Zenczuk and Ms. Clare, the outcome of the proceedings against Mr. Paniccia and Mr. Ampadu means absolutely nothing.

[36] Overall, I consider this procedure to be the best means of aiding in jury comprehension and attenuating the potential for prejudice arising as a result of the removal of Mr. Ampadu and Mr. Paniccia from the proceedings. I am confident the jury will appreciate their task going forward and will follow my instructions.

Boswell J.

Released: May 3, 2019

APPENDIX "A"

1. Mr. Ampadu and Mr. Paniccia are now no longer a part of these proceedings. I withdrew two charges against them and the Crown elected to stay proceedings on the final charge, as they are entitled to do. You should not speculate as to the reasons why these decisions have been made, beyond the brief instructions I have given you this morning.

2. The charge of manslaughter remains against Mr. Zenczuk and Ms. Clare.

3. You must not use the fact that Mr. Ampadu and Mr. Paniccia have been released from these proceedings to decide, or help you decide, whether Mr. Zenczuk or Ms. Clare is or are guilty of a criminal offence in relation to the death of Mr. McCallen. The culpability of each defendant must be assessed individually and on the basis of evidence adduced against him or her in this trial.

4. As between the Crown and Mr. Zenczuk and Ms. Clare, the results of the case against Mr. Ampadu and Mr. Paniccia determine nothing.

5. Your duty going forward is to determine whether the Crown has satisfied you beyond a reasonable doubt as to whether Mr. Zenczuk and/or Ms. Clare is or are guilty of a criminal offence. Each of them remains clothed with the presumption of innocence. That presumption will continue unless Crown counsel satisfies you of his or her guilt beyond a reasonable doubt.

6. Each defendant is entitled to have the case against him or her decided separately. Guilt or innocence is individual and personal. The outcome of this case with respect to Mr. Ampadu and Mr. Paniccia has absolutely nothing to do with the decisions you have to make in this case in relation to Mr. Zenczuk and Ms. Clare.