Court File and Parties
COURT FILE NO.: CR-19-10000639-0000 DATE: 2020-04-24 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HER MAJESTY THE QUEEN, Respondent - and - ABDIRISAQ MUSE, Applicant
BEFORE: C.J. Brown J.
COUNSEL: Ana Serban, Counsel for the Respondent Crown Franklin Lyons, Counsel for the Applicant Mr. Abdirisaq Muse
HEARD: March 11, 2020
Ruling on Application for Mistrial
[1] The Applicant, Abdirisaq Muse, brings this application for a mistrial, following his trial by jury on November 22, 2019 in which he was found guilty by the jury of the charges against him.
[2] Prior to the trial, on September 19, 2019, Bill C-75 came into effect which, inter alia, abolished the use of peremptory challenges.
[3] The applicant brought a challenge to Bill C-75 on the grounds of unconstitutionality and that the amendments were to be applied prospectively and not retrospectively.
[4] I found, following R. v. Chouhan, 2020 ONCA 40, that Bill C-75 was constitutional and that the amendments were to be applied retrospectively.
[5] Following the jury verdict, counsel for Mr. Muse indicated that he wished to bring a Jordan application before proceeding to sentencing. He had to order the transcripts and review the court file in preparation for said Application. The Jordan application was not proceeded with in the New Year.
[6] On January 23, 2020, the Ontario Court of Appeal released its decision in the appeal of R. v. Chouhan, supra, holding that the amendments regarding peremptory challenges were to be applied prospectively.
[7] Following the Court of Appeal’s decision, the applicant brought this application for a mistrial on the ground that he was denied his substantive right to peremptory challenges.
[8] He argues that, as a result of Bill C-75 and the application of retrospectivity as regards peremptory challenges, pursuant to R. v. Chouhan, the jury was not properly constituted, and would have been different.
[9] While the applicant acknowledged that R. v. Henderson, [2004] O.J. No. 4157 (C.A.) stands for the proposition that a trial judge is functus officio post-jury verdict, he submitted that R. v. Henderson did not contemplate a situation such as this, where there were statutory changes without any instruction or guidelines as to how such changes were to be applied. He submits that this is a limited, exceptional case, which requires that a mistrial be declared. The applicant submits that to decline to declare a mistrial would be prejudicial to the due administration of justice.
[10] Further, he submits that it is not certain whether Mr. Muse will be able to obtain Legal Aid funding for an appeal, such that the route of appeal is not certain.
[11] It is the position of the Crown that this Court does not have jurisdiction to declare a mistrial post-verdict, pursuant to R v. Henderson, paras. 30-36, and that the narrow exceptions therein are not applicable. The Crown submits that a new, additional exception should not be created in all of the circumstances.
[12] The Crown further cites numerous cases, decided since the Court of Appeal’s decision in R. v. Chouhan, which have considered the same issue and found that the court did not have jurisdiction post-verdict.
[13] As regards the cases of R. v. Azzi, 2020 ONSC 848 and R. v. McMillan, unreported decision of Dambrot J., dated January 29, 2020, the Crown argues that those cases involve the granting of bail pending appeal, which involves a different test. The Crown argues that, in this case, the issue and test are different; namely, whether the court is functus or whether it should diverge from established authority as regards its limited jurisdiction to declare a mistrial following the jury verdict.
[14] The Crown further argues that a mistrial is a rare remedy, which should only be granted where there is no other remedy, and argues that, in this case, mistrial is not the only remedy available to the applicant, as an appeal is also possible.
[15] Further, the Crown submits that ordering a mistrial at this juncture may be premature and against the public interest as the Crown has sought leave to appeal to the Supreme Court of Canada in the matter of R. v. Chouhan on an expedited basis, such that whether peremptory challenges are retrospective or prospective remains a live issue.
Analysis
[16] Based on the accepted jurisprudence, a trial judge’s jurisdiction to alter a jury’s verdict, order a stay or declare a mistrial after a jury verdict is delivered, is extremely limited. The normal rule is that following the delivery and recording of a verdict by the jury, the trial judge is functus as regards that verdict, with certain narrow exceptions: R. v. Henderson, supra, paras. 29-31.
[17] Those exceptions include the following: (1) where the jury does not render the verdict it intended; and (2) where the accused wishes to raise the defence of entrapment. Neither of those exceptions is applicable here.
[18] Based on all of the jurisprudence, I am of the view that, as the jury has rendered its verdict in this case, and neither of the exceptions in Henderson apply, I am functus and have no further jurisdiction except to proceed to the sentencing of Mr. Muse, pursuant to section 720(1) of the Criminal Code, R.S.C., 1985, c. C-46. I am, at this juncture, obligated to proceed to the sentencing of Mr. Muse.
[19] The application is dismissed.