Court File and Parties
COURT FILE NO.: CR-18-50000107 DATE: 20190604 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN, Respondent – and – SHAKIYL SHAW, LENNEIL SHAW, AND MOHAMED ALI-NUR, Applicants
Counsel: David Tice and Michael Coristine, for the Crown Dirk Derstine, for the Defendant Shakiyl Shaw Boris Bytensky, for the Defendant Lenneil Shaw Margaret Bojanowska, for the Defendant Mohamed Ali-Nur
HEARD: April 25, 2019
Application # 6 re: Mistrial
Reasons for Decision
Clark J.
Introduction
[1] On October 16, 2016, Jarryl Hagley was shot to death in a Pizza Pizza restaurant on Weston Rd. near Lawrence Avenue, in Toronto. In relation to the homicide, Shakiyl and Lenneil Shaw and Mohamed Ali-Nur are charged with first degree murder. Their trial commenced before the jury on April 17, 2019. On April 25, Mr. Derstine, counsel for Shakiyl Shaw, sought to have the court declare a mistrial. Counsel for the other two accused joined in the application. I dismissed the application, indicating that I would provide reasons for my decision as soon as time might permit; these are those reasons.
The Incident
[2] At the end of the sittings on April 24, in the public foyer just outside the courtroom, some unpleasantness occurred between the mother of the deceased and the mother of the Shaw twins. Unfortunately, at that moment, the jury was in the same area making their way to the escalator and the application is based on at least some, and perhaps all, of the jury members having witnessed this interaction.
[3] I listened to a recitation of the incident from Mr. Derstine, who happened to be in the same area and witnessed what transpired. [1] He recounted that the mother of the deceased was “yelling” words such as “murderers,” “killed my son,” and “should be ashamed.” He also indicated that, at one point, she rose out of her chair and strode toward the mother of the twins in what he described as “a purposeful manner,” until a man interposed himself and physically restrained her. Mr. Derstine suggested that the some members of the jury looked shocked at what they were seeing.
[4] During the course of his submissions in support of Mr. Derstine’s applicant, Mr. Bytensky indicated that he was still in the courtroom and, thus, did not witness the incident. I asked Mr. Bytensky whether he heard anything and he indicated that he did not. I asked specifically because, having worked in this building for many years, on a number of occasions when one or more persons have been emotionally upset, I have heard from inside the courtroom loud voices in the foyer.
[5] For her part, as well as adopting the submissions of other defence counsel, Ms. Bojanowska raised the fact that some days before the incident giving rise to the application, the mother of the deceased gave an interview, later broadcast on CTV, [2] in which she stated respecting the accused:
It’s crazy, like they’re dressed up in suits, looking at you, rolling their eyes, and there you are living with this pain, not knowing why they killed your son, and still looking for answers.
This commentary, Ms. Bojanowska contended, was an additional reason the court should be concerned whether the applicants could be fairly tried by this jury.
[6] In response, to Mr. Derstine’s remarks, Mr. Tice indicated that he was advised that there may have been some provocative behaviour on the part of the mother of the twins the day before this incident that prompted the mother of the deceased to say what she did.
[7] I watched a closed circuit television recording of the incident captured by the security system in the courthouse. [3] Unfortunately, the CCTV does not, for obvious reasons, audio record. So I was unable to hear what transpired for myself. That said, to the extent that I could discern from their head movements, some jurors appeared to look over toward the interaction, but, to my observation, none appeared to exhibit any shock or look particularly disturbed.
Position of the Parties
[8] It is submitted by applicants’ counsel that the jurors will not be able to disabuse their minds of what they witnessed. As noted above, Ms. Bojanowska submitted that the situation is exacerbated by the airing of the CTV interview. The combined effect, it is argued, is that there is reason to doubt that the applicants will receive a fair trial.
[9] The Crown opposed the application, submitting that any potential prejudice could be overcome by an instruction from the court that the jury must put aside any such impressions as they may have formed based on what they witnessed.
Discussion
[10] In R. v. Salifu, 2018 ONSC 6750, at para. 8, Harris J. held:
The standard for a mistrial is whether there is a real danger of prejudice or a risk of a miscarriage of justice: R. c. Lessard (1992), 74 C.C.C. (3d) 552, [1992] R.J.Q. 1205 (Que. C.A.), leave to appeal refused, [1992] S.C.C.A. No. 312 [1992] 3 S.C.R. vii, R. v. Henderson, 2004 ONCA 33343, [2004] O.J. No. 4157, 191 O.A.C. 201, 189 C.C.C. (3d) 447 (C.A.), at para. 36, leave refused [2005] S.C.C.A. No. 12. A mistrial should be declared only in the clearest of cases: R. v. Arabia, 2008 ONCA 565, [2008] O.J. No. 2960, 235 C.C.C. (3d) 354, at para. 52, R. v. R. (A.J.) (1994), 94 C.C.C. (3d) 168 (Ont. C.A.), at para. 13; R. v. Paterson (1998), 122 C.C.C. (3d) 254 (B.C. C.A.), at paras. 93-98. The high standard which must be attained before a mistrial is declared is born out of the presumption of jury integrity and the importance of finality to the criminal process. If anything, in the post- Jordan 2016 SCC 27, [2016] 1 S.C.R. 631 world, these rationales have taken on renewed significance.
I adopt those dicta.
[11] Dealing first with the CTV interview, Ms. Bojanowska argued that the mother of the deceased portrayed the applicants in a “very negative light” and, if one or more members of the jury had seen the interview, her remarks would result in prejudice to the applicants. I disagree for two reasons. First, what she said was, in my opinion, neither shocking nor inflammatory and, that said, is not the sort of comment that, in my opinion, would prejudice an intelligent, conscientious juror. Second, I specifically instructed the jury panel that, for the duration of the time they were involved in this case, they were not to look at any media concerning the case and I reiterated that instruction to this jury once it was chosen. In the absence, then, of any evidence that any member of the jury has ignored that instruction, I see no reason to be concerned about the CTV interview.
[12] As for the incident outside court, speaking generally, jurors are assumed to be intelligent, worldly people. Indeed, it is their collective wisdom and life experience that we, as a society, value highly enough that we entrust them with grave and weighty decisions concerning the fates of persons accused of serious crimes. Surely, then, speaking generally, juries are intelligent enough to understand that a murder trial can be, and often is, a fraught and emotionally charged crucible into which people with starkly opposed loyalties and interests are thrust. They can understand that people who have lost a loved one, or whose loved ones are on trial, as the case may be, can from time to time lose their composure. And, in a case where the accused stand charged that they murdered someone, the jury can understand that, the mother of the victim might well think that the accused are guilty. Indeed, absent some very unusual circumstances, I would be very surprised if the jury would expect the mother of a murder victim to think otherwise. As for this jury, they struck me as an intelligent, serious minded and conscientious group, well capable of understanding these things.
[13] Turning to the evidence, as I indicated in the course of oral argument on this application, having looked at the CCTV, I saw no members of the jury who appeared visibly startled or taken aback, or who stopped to take in what was transpiring. As it appeared to me, no one seemed to exhibit any particular shock or upset. Indeed, I saw very little in the way of reaction on the part of the jury members. I note that Mr. Bytensky heard nothing from inside the courtroom, which I would have expected had the deceased’s mother been yelling loudly.
[14] In summary, I was not persuaded that the jury would be prejudiced by what they saw outside the court. Rather, I was strongly of the view that a firm instruction reiterating the presumption of innocence and explaining their duty as judges of this court to decide the case fairly and impartially would suffice to overcome any “danger of prejudice or … risk of a miscarriage of justice” this unfortunate incident might have generated. Immediately following my having dismissed the application, I gave the jury such an instruction.
[15] I note, parenthetically, that defence counsel all argued that they were prepared to commence picking a new jury straightaway and to proceed to trial immediately thereafter. But, as I explained in the course of the application, it is not possible to immediately start again. Having listened, at the outset of this trial, to counsel’s estimates as to how long it would take to try this case, I told the jury panel that they would need to be available for eight weeks. Jury selection in this case involved a challenge for cause. As for peremptory challenges, with three accused and the consensus that it would be wise to pick 14 jurors, the total number of peremptory challenges was 132. A special panel was brought in for this trial because of its projected duration. As it happened, as precaution, I combined another special panel that, quite fortuitously, suddenly became available (when the trial for which it had been summoned resolved in a guilty plea). Had I declared a mistrial, there was no other special panel available from which we could have chosen a new jury. That would have meant trying to pick a jury from one or more regular panels. With the projected length of this trial, the challenge for cause, and 132 peremptory challenges, and the legitimate needs of other courts to utilize those panels, that would have been difficult, if not impossible. Being realistic, then, despite counsel’s protestations that they did not want an adjournment, had I mistried the case, the only practical solution would have been to adjourn the matter long enough to muster another special panel of sufficient size to be confident of getting a jury. For all practical purposes, that would have meant a delay of several months, at least. In light of the fact that all three applicants were in custody, that seemed a very unsatisfactory prospect, both from their point of view and, in a post-Jordan universe, from the perspective of the Crown.
Result
[16] In the result, for the foregoing reasons, as indicated above, I dismissed the application.
Clark J.
Released: June 4, 2019
COURT FILE NO.: CR-18-50000107 DATE: 20190604 ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN – and – SHAKIYL SHAW, LENNEIL SHAW, AND MOHAMED ALI-NUR Applicants
REASONS FOR DECISION CLARK J.
Released: June 4, 2019
Footnotes
[1] While it is trite to observe that a barrister cannot be both witness and counsel in the same proceeding, in light of the fact that there appeared to be no other eye witness who could be conveniently called upon to relate to the court what Mr. Derstine happened to see, with the concurrence of all counsel I permitted Mr. Derstine, as an officer of the court, to recount the episode to the court. [2] Exhibit 1 on the mistrial application. [3] Exhibit 2 on the mistrial application.
