COURT FILE NO.: CR-18-222
DATE: April 28, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Respondent
- and -
Samson Aristor
Applicant
Counsel:
S. Kim, for the Respondent
K. Edward and S. Martinez, for the Applicant
HEARD: March 13, 2020
BEFORE: The Honourable Mr. Justice H.S. Arrell
JUDGMENT
INTRODUCTION:
[1] The applicant was charged and convicted by a jury of second-degree murder on October 16, 2019.
[2] The trial commenced on September 30, 2019.
[3] The jury selection provisions of the Criminal Code, R.S.C. 1985, c. C-46, were amended effective September 19, 2019. These amendments, among other things, abolished peremptory challenges and substituted the presiding judge as the adjudicator of the truth of challenges for cause: see R. v. Chouhan, 2020 ONCA 40, 60 C.R. (7th) 1, at para. 8.
[4] At trial, the applicant agreed that peremptory challenges were no longer available. There was no constitutional challenge to the amendments or argument about their temporal application. I was not asked to allow peremptory challenges and I, therefore, did not do so. The applicant further consented to me being the adjudicator of the truth of the challenges for cause, which I did, and the jury was selected.
[5] The applicant has now brought a motion seeking a mistrial relying on Chouhan which was released on January 23, 2020. That decision concluded “…that the abolition of the peremptory challenge applied prospectively, that is to say, only to those cases where the accused’s right to a trial by judge and jury vested on or after September 19, 2019. Comparatively, the court held that “…the amendment making the presiding judge the trier of all challenges for cause applies retrospectively, that is to say, to all cases tried on or after September 19, 2019, irrespective of when the right vested”: Chouhan, at para. 5.
POSITIONS OF THE PARTIES:
[6] The applicant argues that he should have been entitled to peremptory challenges, and since he was not, the jury was improperly constituted ab initio. Therefore, he suggests the jury lacked jurisdiction to try his case and any verdict it rendered was a nullity. He further argues that he is therefore entitled to a mistrial and a new trial where he can exercise his right to peremptory challenges such that the jury will be properly chosen and will have jurisdiction to render a valid verdict.
[7] The Crown is opposed to the mistrial, arguing that the court is functus officio and lacks jurisdiction to declare a mistrial. Mr. Kim suggests the proper recourse is for the applicant to launch an appeal.
ANALYSIS:
[8] The Supreme Court of Canada’s decision in R. v. Head, 1986 CanLII 8 (SCC), [1986] 2 S.C.R. 684 forms the general rule that prohibits changes to a criminal verdict post-discharge. There are two exceptions to this rule:
a) Where the verdict has been improperly recorded: see R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857; and
b) Where the defence of entrapment is made out: see R. v. Henderson (2004), 2004 CanLII 33343 (ON CA), 189 C.C.C. (3d) 447 (Ont. C.A.), at para. 31.
[9] In Henderson, Feldman J.A. observed that the exception recognized in Burke applied only in the very limited circumstances of an error in the recording of the jury’s intended verdict. It did not extend to situations where “issues in the conduct of the trial and the evidence presented may have affected [the] verdict”: at para. 37.
[10] Neither of the exceptions apply to the case at bar.
[11] The court was referred to, and is aware of, five cases that have considered the issue of a mistrial after the verdict of the jury was delivered since the Court of Appeal delivered its decision in Chouhan. All five cases concluded that the court lacked jurisdiction to declare a mistrial and the applications were dismissed.
[12] The applicant relies on R. v. Azzi, 2020 ONSC 848, 2020 O.J. No. 539. He argues that Henderson is distinguishable from the case at bar as it dealt with events that occurred before or during a trial that should have been aired and potentially remedied pre-verdict.
[13] In Azzi, a case similar to the one at bar, the applicant argues that the court distinguished Henderson and relied on R. v. Burke, stating at para. 9:
In my view, the Supreme Court of Canada decision in R. v. Burke 2002 SCC 55, [2002] S.C.J. No. 56 applies. That case makes clear at paras. 74-75 that “There are broad common law powers to declare a mistrial. Mistrials have been ordered or considered as a potential solution in a range of situations.” Those situations include numerous circumstances occurring after juries have been discharged. Factors to be considered in determining whether a mistrial is needed to prevent a miscarriage of justice include the rights of the accused, the public interest and the effect of a mistrial on the public’s confidence in the administration of justice.
[14] In Azzi the learned trial judge concluded he had the ability to declare a mistrial but declined to do so. That determination was based largely on the fact that the prejudice to Mr. Azzi was low given that the Crown was consenting to bail, and the appeal was being fast tracked.
[15] I have no information that such circumstances apply to the case at bar. I am however aware that many of these cases are being fast tracked by the Court of Appeal. I also agree with Charney J.’s finding in R. v. Matos-Gonzalez (unreported decision, Ont. S.C., court file no. CR-17-00006155-000) that uncertainty surrounding bail pending appeal is insufficient to lead to a different conclusion than that in Azzi. Mr. Aristor has every right to seek bail pending appeal and no doubt all factors will be considered.
[16] The Crown has pointed out that a successful appeal is not necessarily a foregone conclusion; Chouhan has been appealed to the Supreme Court of Canada, and the curative proviso may come into play on Mr. Aristor’s appeal, as may his concession that peremptory challenges did not apply to his trial. I note that in Chouhan, the defendant unsuccessfully argued before the trial judge both that the repeal of peremptory challenges was unconstitutional and that the amendments applied prospectively.
CONCLUSION:
[17] I am not persuaded that I should follow the obiter in Azzi, although I do agree with the result that this motion should be dismissed, and the applicant must seek his remedy in the Court of Appeal.
[18] I conclude that this case does not fit into the recognized exceptions, as clarified in Henderson. The verdict registered was final and recorded many months prior to this application. That aspect of the case was as final as if the applicant had been acquitted by the jury. As was stated by Boucher J. in R. v. Turner (unreported decision, Ont. S.C., court file no. CR-19-50000623-0000) “At this stage, the only jurisdiction the trial judge has is to sentence the accused under section 720. Remedies for errors or jurisdiction must at this stage be sought by way of appeal…Even if the verdict in this matter is voidable by the trial judge, the decision to grant a mistrial is discretionary. I would, nonetheless, decline to grant a mistrial in these circumstances.” See also R. v. Khurshid and Phillips (unreported decision by Bielby J., Ont. S.C., court file no. CR-18-1263, at p. 4).
[19] The application for a mistrial is dismissed.
Arrell J.
Released: April 28, 2020
COURT FILE NO.: CR-18-222
DATE: April 28, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Respondent
- and -
Samson Aristor
Applicant
JUDGMENT
Released: April 28, 2020