COURT FILE NO.: CR-18-50000107

DATE: 20191008

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

SHAKIYL SHAW, LENNEIL SHAW, AND MOHAMED ALI-NUR Applicants

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: June 4, 2019

Application #10 re: Mistrial

Reasons for Decision

clark J.

Introduction

[1] On October 16, 2016, Jarryl Hagley was shot to death in a Pizza restaurant on Weston Rd., in Toronto. In relation to the homicide, Shakiyl and Lenneil Shaw and Mohamed Ali-Nur were charged with first degree murder. Their trial commenced on April 17, 2019. On May 21, the jury retired to deliberate and, on May 23, they found all three accused guilty as charged. The matter was then adjourned to June 4, 2019, for sentence. On that date, in relation to the conduct of a juror alleged to have occurred on May 19, 2019, counsel for all three accused applied to have the court conduct a factual inquiry respecting the conduct of a juror and, in any event, to have the court declare a mistrial. The Crown opposed both heads of relief.

The Impugned Conduct

[2] At the outset of the trial, I gave the jury the standard instruction that they were not to investigate any aspect of the case, either themselves or together with any other juror(s).

[3] It appears that on or about May 19, 2019, after the Crown and two of three defence counsel had made their closing remarks to the jury, Juror #14 used an online computer application (“app”) known as “Strava”[^1] to track his cycling. It appears from the material filed that the juror posted on the app, under the title “2-4 Ride for Pizza. Nice!”, a Google map of his ride that day. From the small scale of the map it is impossible to know with certainty exactly what streets he transited, but, from the route depicted taken together with a number of “selfies” the juror posted (which include several taken in front of the restaurant in which the murder occurred), it would seem beyond dispute that he rode past, and stopped at for some period of time, the scene of the murder. It also appears, from the route depicted, that he rode at least nearby, but possibly on, a street known as Scarlettwood Ct., a location that figured into the narrative of events leading up to the murder.

Discussion

The Proposed Factual Inquiry

[4] A trial court has a limited jurisdiction to embark upon an inquiry such as the applicants sought, but it is not obliged to do so; the Court of Appeal has a concurrent jurisdiction in this regard: R. v. Hassan, 2013 ONCA 238. In Hassan, at para. 5, Doherty J.A. noted that the appellant had “a full opportunity to create the appropriate record for this court.” See also R. v. Phillips, 2008 ONCA 726, where the court noted that a juror's post-verdict utterances could have been preserved for use on appeal had defence counsel asked the trial judge to conduct an inquiry and compel that juror, and possibly other jurors, to testify about the comments, but, equally, appellate counsel could have achieved the same result by invoking s. 683 (1) (d) of the Criminal Code, which would authorize the Court of Appeal to hear the same evidence.

[5] There can sometimes be a need to conduct an inquiry of this sort to preserve evidence while it is fresh and still available; this begs the question of whether this court was in a more advantageous position to create a suitable record than the Court of Appeal might later be.

[6] In terms of the evidence of what the juror had posted on the app, I was of the view that the evidence was sufficiently preserved for the Court of Appeal.

[7] As for further inquiries of the juror, the applicants submitted that the court should “conduct a factual inquiry to [determine] whether any extrinsic information Juror #14 gained from visiting these sites had an impact upon the jury’s verdict.”[^2] The law is clear, however, that such inquiries as the court is permitted to make are strictly limited to matters extrinsic to the jury’s deliberations; see R. v. Pan, R. v. Sawyer, 2001 SCC 42, [2001] 2 S.C.R. 344, at para. 59, where the court stated:

Evidence indicating that the jury has been exposed to some information or influence from outside the jury should be admissible for the purpose of considering whether or not there is a reasonable possibility that this information or influence had an effect upon the jury's verdict. Such evidence should be admissible regardless of whether it is a juror or someone outside the jury who offers the evidence. However, while jurors may testify as to whether or not they were exposed to extrinsic information in the course of their deliberations, the court should not admit evidence as to what effect such information had upon their deliberations.

Against that backdrop, to have inquired whether any extrinsic information had an impact upon the jury’s verdict, as applicants’ counsel invited the court to do, would, in my opinion, have been to do precisely what the court may not do; see Pan, at para. 77, where the court stated, “[i]n particular, jurors may not testify about the effect of anything on their or other jurors’ minds, emotions or ultimate decision.”

[8] In R. v. Lewis, 2017 ONCA 216, at para. 44, the court held that “the tenuous nature of the evidence advanced as possibly suggesting that the jury was exposed to extrinsic evidence… must be weighed against the importance of the secrecy of jury deliberations…. The need for stable and final jury verdicts means that there should be an inquiry only where there is a credible basis to conclude that a jury may have been exposed to extrinsic evidence.”

[9] In this trial, copious evidence was led concerning the physical environs of both locations. Further, the photographs the juror posted make it obvious that he attended the scene during the day, whereas the murder took place in the early morning, in full darkness. Against that backdrop, it does not follow, to my mind, that, by going to one or possibly both locations, Juror #14 would have become privy to any additional useful information beyond that of which the jury was already aware. Limiting the inquiry to its proper scope, then (to wit: what Juror #14 saw at one or possible both locations; what, if anything, he learned that he did not already know and what, if anything, he communicated to the other jurors), I was of the view that the answers to those questions are likely to be the same at such time as they may be asked on an inquiry pursuant to s. 683(4) of the Criminal Code as they would have been had I conducted the inquiry the applicants sought.

The Proposed Mistrial

[10] “A trial 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 and recording of a verdict by the jury, the trial judge is functus in respect of that verdict, which cannot be altered, except on appeal”: R. v. Henderson (2004), 189 C.C.C. (3d) 427, at para. 29. “A mistrial should only be declared where it is "necessary to prevent a miscarriage of justice”: R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857, at paras. 74-77. Indeed, the jury’s verdict in a criminal case has been characterized as “sacrosanct”: Henderson, at para. 30, and, “subject to some narrow exceptions” (loc. cit.), a trial judge lacks jurisdiction to set it aside.

[11] The applicants argue that “[t]he improper tainting of even one juror affects the entirety of the jury’s verdict, [such]… that a verdict reached in consideration of extrinsic material, which is not evidence, cannot be [a] ‘true’ verdict.”[^3] But, even assuming, arguendo, that the juror acquired additional information, consideration must be given to “the relationship of the extraneous information to the contested issues at trial”: R. v. Pannu, 2015 ONCA 677, at para. 103.

[12] The principal contested issue in this trial was identity; viz.: counsel for all three accused posited that three persons other than the accused were involved in the murder, but the principal Crown witness falsely identified the accused men because he was in fear of the real perpetrators. A second issue was, assuming the jury concluded that it was the accused who took part in the murder, whether the murder was planned and deliberate. Neither of those issues is affected by the particular physical configuration of the murder scene and even less so by that of Scarlettwood Ct.

[13] A further question, identified in Pannu (at para. 104), is whether the extraneous information was outside the jurors’ knowledge. In this trial, as alluded to above, photographs and video recordings of both locations were entered into evidence. These were supplemented by scale diagrams and maps. So, all jurors would have had a good understanding of the physical layout of both locations. Given the irrelevance of the physical scene(s) to the principal issues in this trial and given the familiarity the jurors had with these locations by virtue of the evidence led, I fail to see how visiting one or both locations would have enhanced Juror #14’s understanding in any way that would have affected his perception of the case. Further still, I find it even less likely that, had Juror #14 imparted any information he gleaned from visiting the scene(s) to one or more other jurors, any such additional information would have affected their perception of the scene(s) or, more importantly, their deliberations on the central issues in the trial.

[14] At para 106 of Pannu, Watt J.A., speaking for the court, held that another concern was “whether curative instructions were given or some other step taken to redress any prejudice.” In Pannu, “the existence of [the extrinsic] material was not communicated to the trial judge prior to his charge or in advance of verdict.” Yet, “[a]lthough the trial judge was unable to conduct an inquiry or provide more specific jury instructions, the charge reinforced earlier instructions (ignored by the foreman) that confined deliberations to their proper subject matter and reiterated the exclusive source of legal instructions as the trial judge.” Similarly, in this case, although unaware of this issue until after the jury had returned its verdicts and been discharged, I gave a strong instruction both at the beginning of the trial and again in my final instructions that the jury was not to consider any information that had not been introduced into evidence and tested by the parties. I couched those instructions in terms of fairness to the parties. The jury system presumes that the jury will follow the trial judge's instructions: Pannu, at para. 98. Though rebuttable, nothing on the record before me amounts to a rebuttal.

[15] A final consideration in Pannu, was “whether the extraneous information related specifically to anyone on trial and included any information that revealed extrinsic misconduct by a person charged”: at para. 106. Assuming, in this case, that the juror gleaned some further information and imparted it to one or more other jurors, the information did not relate to any of the applicants and, by obvious extension, revealed no misconduct by any of them.

[16] In summary, then, I adopt what Watt J.A. said in Pannu, at para. 107, to wit: “[w]hat occurred here falls short of establishing a miscarriage of justice through an appearance of unfairness. To decide otherwise would be tantamount to creating a per se rule that any extraneous information that enters the jury room impairs the apparent fairness of the trial and constitutes a miscarriage of justice that requires a new trial.”

Result

[17] In the result, the application was dismissed.

Clark J.

Released: October 08, 2019

COURT FILE NO.: CR-18-50000107

DATE: 20191008

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: October 08, 2019

[^1]: This app is used by cyclists to communicate with other cyclists concerning matters of interest to the cycling community. [^2]: Notice of Application for a Juror Inquiry and a Mistrial, para. 12. [^3]: Op. cit., para. 13.