COURT FILE NO.: 16-SA19432
DATE: 2020/02/06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ZIAD G. AZZI
Defendant
L. Tansey, for the Crown
D. Baum, for the Defendant
HEARD: February 6, 2020
RULING ON APPLICATION FOR MISTRIAL
PHILLIPS J.
[1] Ziad Azzi was charged with sexual assault on an information sworn December 2, 2016. He elected to be tried by judge and jury on December 19, 2018. A trial was held commencing December 9, 2019 and Mr. Azzi was found guilty by the jury on December 19, 2019. A sentencing hearing is set for March 5, 2020.
[2] The jury selection proceeded by way of the new procedures which came into force on September 19, 2019. Accordingly, no peremptory challenges were made available to either party.
[3] I will add that the new method was used without objection. It was the consensus of the parties that peremptory challenges were no longer available. No constitutional or other challenge was brought in respect of the applicability of the new jury selection procedure. I was not asked to allow peremptory challenges and I, therefore, did not do so.
[4] The Court of Appeal for Ontario released R. v. Chouhan, 2020 ONCA 40, on January 23, 2020. That decision dictates that the new jury selection method, while constitutional, is substantive in nature and ought only apply prospectively. This is a problem because Mr. Azzi’s right to a jury trial vested December 19, 2018.
[5] Mr. Azzi applies for a mistrial. He argues that his jury was selected through an inapplicable procedure such that they were not properly constituted. As such, the jury had no jurisdiction to try the case and their verdict is a nullity. Given that there is no way to remedy that result a mistrial is warranted.
[6] The Crown argues that I am functus and in no position to declare a mistrial. It says that I am mandated to sentence Mr. Azzi and leave any remedy arising from the jury selection issue for the Court of Appeal. It may well be, points out the Crown, that the R. v. Chouhan decision is itself appealed or that the Court of Appeal applies the curative proviso to this case.
[7] I do not agree that I am functus. While I accept that R. v. Henderson 2004 CanLII 33343 (ON CA), [2004] O.J. No.4157, makes clear that a trial judge’s power to declare a mistrial post jury verdict is very circumscribed, the Court of Appeal was dealing with circumstances meaningfully different from the matter at bar. That case concerned post-verdict declaration of mistrial for events that occurred before or during a trial that should have been aired and potentially remedied pre-verdict. The decision confines itself in that regard at paragraph 35:
We do not need to decide in this case whether there are any circumstances when the stay procedure in Mack might be extended. The issue here is whether, as a remedy for a Charter breach or for an abuse of process, the trial judge has jurisdiction to declare a mistrial following the recording of the jury’s verdict of guilt for pretrial non-disclosure by the Crown which was known to the defence.
[8] It seems to me that the situation at bar is different from what is contemplated in R. v. Henderson, supra, and R. v. Mack (1988) 1988 CanLII 24 (SCC), 44 CCC (3d) 513 (SCC), as well as R. v. Gostick (1991) 1991 CanLII 11749 (ON CA), 62 CCC (3d) 276 (Ont. C.A.). It is not that the jury’s verdict was arrived at after some sort of problem or interference that might bring it into question. It is that they never should have been asked to render a verdict at all. I distinguish scenarios that relate to the quality of the jury’s verdict from what is at play here – the fact that Mr. Azzi’s jury simply did not have jurisdiction to decide his case ab initio. The former is a matter for appellate review. The latter is potentially a mistrial because there might be no jurisdictionally sound verdict upon which to proceed to sentence.
[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.
[10] Having said all that, I have decided that while I do have the ability to declare a mistrial, such a result is not called for in the circumstances.
[11] I appreciate that Mr. Azzi would prefer to be returned to being cloaked in the presumption of innocence. At the same time, I consider the prejudice to him from the case continuing up the line to be attenuated by two factors. First, the Crown sensibly informs me that they will not oppose Mr. Azzi receiving bail pending appeal. Second, transcripts of the trial have been ordered such that the steps required to mount an appeal are already underway. It would appear, therefore, that Mr. Azzi will await appellate review out of custody on an accelerated timeline. I see the prejudice to Mr. Azzi in proceeding onward to be on the low end despite his wishes.
[12] I consider that this was a sexual assault case. I have no doubt that the complainant is not eager to testify again. The ordeal that this was for her is something to keep in mind.
[13] A successful appeal is not a foregone conclusion. The application of the curative proviso was not decided in R. v. Chouhan, supra. Also, it remains unclear as to whether R. v. Chouhan will itself end up before the Supreme Court of Canada.
[14] I see strong public interest in continuing forward. The public has a reasonable expectation that there be but one trial per indictment. The investment of time, money and emotional capital ought not be lightly squandered. A mistrial should only be declared as a last resort. I am not convinced that such a rare remedy is the only proper outcome in all the circumstances.
[15] The mistrial application is dismissed.
Justice Kevin B. Phillips
Released: February 6, 2020
COURT FILE NO.: 16-SA19432
DATE: 2020/02/06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
ZIAD G. AZZI
Defendant
RULING ON APPLICATION FOR MISTRIAL
PHILLIPS J.
Released: February 6, 2020