Court File and Parties

COURT FILE NO.: CR-20-307-00 DATE: 2022-03-24

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN C. Coughlin and P. Maund, for the Crown

- and -

PHILIP FITZPATRICK and EVAN WRIGHT S. Caramanna and C. Laperriere, for Mr. Fitzpatrick J. Goldlist and M. Bavaro, for Mr. Wright

HEARD: February 10, 2022

DECISION ON DEFENCE MOTION FOR A DECLARATION OF A MISTRIAL

Justice André

[1] Following the Crown’s closing address to the jury in this first degree murder trial, defence counsel raised a number of concerns about the Crown’s address and served notice that they may bring this motion for a mistrial.

BACKGROUND FACTS

[2] On June 21, 2018, at approximately 4:30 am, at least two males kicked down the door of the apartment of Brandon Hall and gunned him down. The accused were charged with first degree murder in November 2018. During the trial, the Crown’s main witnesses were Cheryl Hall, the mother of the deceased, and Marquis Grant-Mentis (“MGM”), who testified that Mr. Wright confessed to him that he had shot Mr. Hall. Defence counsel, however, repeatedly suggested to MGM that he was the one who had fatally shot Mr. Hall. Both MGM and Jenna Parsons, Mr. Wright’s cousin, testified that Mr. Wright had admitted to them that he had shot Mr. Hall.

[3] Following a lengthy trial which was delayed primarily because of a number of Covid-19 related factors, defence counsel and the Crown made their respective closing addresses to the jury. After the Crown’s closing address, which took the better part of a day, defence counsel advised the court that they intend to do some research to assess whether they should bring a motion for a mistrial based on their concerns about the Crown’s address.

THE DEFENCE’S POSITION

Ms. Goldlist’s Position

[4] Ms. Goldlist, on behalf of Mr. Wright, submits that the following errors in the Crown’s closing address cumulatively justify a declaration of a mistrial:

a) He erroneously told the jury that Mr. Wright’s evidence does not raise a reasonable doubt in the Crown’s case;

b) The Crown read the expert opinion of psychologists, gleaned from the case of R. v. Miaponoose (1996), 30 O.R. (3d) 419 (Ont. C.A.) and suggested that this opinion could be relied on to assess the credibility of a witness despite the fact that this expert evidence was not elicited during this trial;

c) It was improper for the Crown to advise the jury that the evidence of Cheryl Hall, one of its witnesses and the only eyewitness to the murder, was unreliable;

d) During his address, the Crown attorney repeatedly mocked defence counsel and constantly mocked the testimony of her client in a very unprofessional manner;

e) The Crown improperly gave evidence of what a tactical unit of the local police force normally do when they enter a home, despite the fact that they never elicited this evidence during the trial;

f) The Crown gave evidence regarding the distance between a concrete ledge in front of the door to the deceased’s apartment and the front door which was not elicited during the trial;

g) The Crown improperly told the jury that MGM, who the defence theorize was the person who fatally shot Brandon Hall, manifested a “consciousness of innocence” because he voluntarily agreed to give samples of his bodily fluids for DNA analysis. Ms. Goldlist submits that there is no such term known in law and that the Crown’s “invention” of this phrase was highly prejudicial to the defence;

h) The Crown improperly suggested that MGM gave a third statement to the police on November 21, 2018, because he had an “awakening” and that MGM had lied about a third party called “Chief” in order to help Evan Wright, despite the fact that this was never put to MGM;

i) The Crown improperly told the jury that if MGM was going to lie in his third police statement, he would have mentioned or implicated Philip Fitzpatrick in Mr. Hall’s death. That submission was highly improper given that the Crown led no evidence that MGM knew that Mr. Fitzpatrick had been arrested before he made his third statement on November 21, 2018;

j) The Crown improperly questioned the defence’s failure to call Mr. Wright’s mother as a witness in the trial;

k) The Crown improperly relied on his own personal experience about how Service Canada measures the height of members of the public to submit that Mr. Wright’s testimony that his mother measured his height in 2018 was not credible;

l) The Crown repeatedly misquoted the evidence by telling the jury that Jenna Parsons testified that Mr. Wright told her that, “I am going to kill Brandon before Brandon kills me.”

Mr. Caramanna’s Position

[5] Mr. Caramanna submits that:

a) Expert evidence regarding eyewitness identification evidence is expressly prohibited. It was, therefore, improper for the Crown to have made specific reference to such evidence in his closing address to the jury;

b) The Crown cast aspersions on Mr. Caramanna’s character by telling the jury that he should not have made a particular submission to the jury;

c) The Crown egregiously relied on his failure to comply with the rule in Browne and Dunn (1893), 6 R 67 (HL), coupled with its cynical refusal to disclose the theory of the Crown’s case to “completely ambush” the defence on the issue regarding whose DNA was on a yellowish/green glove recovered from a park close to the scene of Mr. Hall’s murder. The defence spent a fair amount of time submitting to the jury that the DNA was that of Evan Wright. The Crown, despite repeated requests, never conceded this issue and yet grandiosely declared to the jury, that the DNA was indeed that of Evan Wright. Mr. Caramanna submits that “it was a planned ambush” on that issue;

d) The Crown never cross-examined Evan Wright on how and why Philip Fitzpatrick became involved in the alleged plan to kill Brandon Hall or the route he took to his home following the fatal shooting of Mr. Hall. The Crown submitted to the jury that his failure to question Mr. Wright about the route he took to return to his home after the shooting was an “oversight”;

e) The Crown improperly told the jury that Mr. Caramanna had no business telling the jury that he was certain that Evan Wright’s DNA would be on the white latex gloves found close to the scene and that Mr. Caramanna knew that he should not have done so;

f) The Crown improperly told members of the jury that Mr. Caramanna and his client have an interest in influencing them that one of the persons captured on surveillance videos from a hair salon and convenience store had a dark eye socket;

g) The Crown improperly told the jury that Shawn Wright and Jordana Diamond had tailored their evidence to suit or favour the defence;

h) The Crown “denigrated” the burden of proof in a criminal trial by telling the jury on three occasions that the Crown was required to prove its case beyond a reasonable doubt.

[6] Mr. Caramanna submits that the Crown’s “specious” conduct has “poisoned the well,” thereby nullifying the efficacy of a corrective instruction in the circumstances of this case. He relies largely on the Supreme Court of Canada’s decision in R. v. Rose, [1998] 3 S.C.R. 262, for the proposition that the only appropriate remedy in this case is the declaration of a mistrial.

THE LAW

[7] A mistrial should only be declared in the “clearest of cases” where there has been a “fatal wounding of the trial process” which simply cannot be remedied: R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857; R. v. Dueck, 2011 SKCA 45, 371 Sask. 134; R. v. Toutissani, 2007 ONCA 773, at para. 9.

[8] In R. v. Clyke, 2021 ONCA 810, the Court of Appeal noted the following at paras. 32-37:

[32] When improper comments by Crown counsel are sufficiently prejudicial, a trial judge has a duty to intervene, and a failure to do so will constitute an error of law: R. v. T.(A.), 2015 ONCA 65, 124 O.R. (3d) 161, at para. 29, citing R. v. Romeo, [1991] 1 S.C.R. 86, at p. 95 and R. v. Michaud, [1996] 2 S.C.R. 458, at para. 2.

[33] The analysis of a claim on appeal that Crown counsel crossed the line in closing submissions to a jury proceeds in two stages: the court must first determine whether the Crown’s conduct was improper; and if so, “whether, considered in the context of the trial as a whole, including the evidence adduced and the positions advanced, the substance or manner of the Crown’s closing address has caused a substantial wrong or miscarriage of justice, including by prejudicing the accused’s right to a fair trial”: R. v. McGregor, 2019 ONCA 307, 145 O.R. (3d) 641, at para. 184.

[34] With respect to the first stage of the analysis – whether the Crown’s conduct was improper – the limits imposed on Crown counsel are well-established. These include:

• “The Crown occupies a special position in the prosecution of criminal offences, which ‘excludes any notion of winning or losing’ and ‘must always be characterized by moderation and impartiality’”: T.(A.), at para. 26, citing R. v. Boucher, [1955] S.C.R. 16, at pp. 21, 24.

• The Crown should not “engage in inflammatory rhetoric, demeaning commentary or sarcasm, or legally impermissible submissions that effectively undermine a requisite degree of fairness”: R. v. Mallory, 2007 ONCA 46, 217 C.C.C. (3d) 266, at para. 340;

• The Crown must not “express personal opinions about either the evidence or the veracity of a witness”: R. v. Boudreau, 2012 ONCA 830, at para. 16, leave to appeal refused, [2013] S.C.C.A. No. 330; Boucher, at p. 26. The Crown must not invite speculation by the jury: McGregor, at para. 179, or rely on anything within their personal experience or observations that is not in the evidence: R. v. Pisani, [1971] S.C.R. 738, at p. 740;

• The Crown must not “invite the jury to use an item of evidence in reaching its verdict for a purpose other than that for which it was admitted and the law permits”: McGregor, at para. 180; and

• The Crown must not misstate the evidence or the law: Boudreau, at para. 16.

[35] There is no question that the Crown is entitled to make forceful and effective closing submissions: McGregor, at para. 181. Both Crown and defence counsel are entitled to latitude in their closing addresses. However, as Deschamps J. wrote for the majority in R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239, at para. 79:

Crown counsel are expected to present, fully and diligently, all the material facts that have evidentiary value, as well as all the proper inferences that may reasonably be drawn from those facts. However, it is not the Crown’s function “to persuade a jury to convict other than by reason”: R. v. Proctor (1992), 11 C.R. (4th) 200 (Man. C.A.), at para. 59. Rhetorical techniques that distort the fact-finding process, and misleading and highly prejudicial statements, have no place in a criminal prosecution. [Emphasis added.]

[36] With respect to the second stage of the analysis – whether a substantial wrong or miscarriage of justice has resulted from the Crown’s conduct – there is no “unyielding rule” mandating that improper Crown closing submissions require a new trial. The test is whether the closing address “was unfair in such a way that it might have affected the decision of the jury”: R. v. Grover (1990), 56 C.C.C. (3d) 532 (Ont. C.A.), at p. 537; reversed on appeal, but not on this point , [1991] 3 S.C.R. 387. See also Pisani, at para. 5, where the court concluded that improprieties in the Crown’s closing address bore so directly on the actual issue in the case and were so prejudicial in respect of that issue and of the related question of credibility as to deprive the appellant of a fair trial.

[37] While each case falls to be decided on its own facts, a non-exhaustive list of factors to be considered includes: (i) the seriousness of the improper comments; (ii) the context in which the comments were made; (iii) the presence or absence of objection by defence counsel; and (iv) any remedial steps taken by the trial judge following the address or in the final instructions to the jury: R. v. Taylor, 2015 ONCA 448, 325 C.C.C. (3d) 413, at para. 128, per Watt J.A.

[9] The Court of Appeal further noted at para. 40 in Clyke, that:

A timely and focused correction by a trial judge of deficiencies in a Crown’s closing address may be sufficient to alleviate any prejudice to an appellant’s fair trial rights: Boudreau, at para. 20. “Clarity, specificity and, forcefulness are the three qualities appellate courts usually look at in considering the adequacy of the correction”: Robert J. Frater, Prosecutorial Misconduct, 2nd ed. (Toronto: Carswell 2017), at p. 283. In cases where this court has found potentially prejudicial Crown misconduct, but deferred to the trial judge’s remedial approach, the court has described the corrective instruction as “blunt”, “strong”, “strongly-worded”, “firm and clear” or “pointed”, observing that the trial judge explicitly identified the problematic areas and told the jury to disregard them: see, e.g., Boudreau, at para. 19; R. v. John, 2016 ONCA 615, 133 O.R. (3d) 360, at para. 64; R. v. Osborne, 2017 ONCA 129, 134 O.R. (3d) 561, at para. 85; R. v. Howley, 2021 ONCA 386, at para. 49.

[10] Finally, the court noted at para. 42 that:

A caution with precise examples is preferable to a general appeal to the jury to be dispassionate: Melanson v. R., 2007 NBCA 94, 230 C.C.C. (3d) 40, at para. 75. Judges should identify clear improprieties to the jury and provide “an unambiguous direction that they are to be disregarded as irrelevant”: Fiddler v. Chiavetti, 2010 ONCA 210, 317 D.L.R. (4th) 385, at para. 18.

ANALYSIS

[11] I will now address each of the alleged errors in the Crown’s closing address to the jury.

A. Advising the Jury that Mr. Wright’s Evidence does not raise a reasonable doubt

[12] In my view, this alleged impropriety must be considered, as noted in Clyke, at para. 33, “in the context of the trial as a whole, including the evidence adduced and the positions advanced and the substance or manner of the Crown’s closing address”. The Crown repeatedly advised the jury that the Crown bears the burden of proving the guilt of the accused beyond a reasonable doubt. He also advised the jury that the defence is not required to call any evidence and that it is their assessment of the evidence, not the Crown, defence counsel or the trial judge, that matters. I also advised the jury in my preliminary remarks that they are the judge of the facts and that they can accept some, all, or none of the evidence of any witness. Finally, I have already instructed the jury on the burden of proof in a criminal trial. For these reasons, I respectfully disagree that this statement by the Crown is of a magnitude that, along with other deficiencies, may adversely affect trial fairness to an extent that would justify a declaration of a mistrial.

B. Reference to Expert Evidence regarding the Assessment of the Evidence of Cheryl Hall

[13] The Crown read a passage in Miaponoose regarding the Jury’s assessment of Ms. Hall’s evidence, in which she agreed that she initially told the police in two statements that the shooter had been a short, stocky black male with short hair who had not even been wearing a mask. Ms. Hall subsequently found out that the police had charged two white males in her son’s death. At a preliminary hearing in March 2020, she retreated from her initial statements and testified that all she had seen was black and that the shooter was masked. She testified in a similar vein during the trial.

[14] In his closing address to the jury the Crown read the following passage from Miaponoose:

Simply by way of illustration, psychologists have shown that much of what one thinks one saw is really perpetual filling-in. Contrary to the belief of most laymen, and indeed some judges, the signals received by the sense organs and transmitted to the brain do not constitute photographic representations of reality. The work of psychologists has shown that the process whereby sensory stimuli are converted into conscious experience is prone to error, because it is impossible for the brain to receive a total picture of any event. Since perception and memory are selective processes, viewers are inclined to fill in perceived events with other details, a process which enables them to create a logical sequence. The details people add to their actual perception of an event are largely governed by past experience and personal expectations. Thus the final recreation of the event in the observer's mind may be quite different from reality.

[15] The defence correctly submits that the Crown was plain wrong to read this scientific evidence regarding the frailties of identification evidence in a case where Ms. Hall never identified a specific person as her son’s shooter. They also submit, relying on R v. McIntosh (1997), 117 C.C.C. (3d) 385 (Ont. C.A.), and [R v. Myrie, [2003] O.T.C. 219 (S.C.)], that the court would not admit evidence from a defence psychologist on the issue of identification. The Crown concurs that relying on this passage in Miaponoose was a mistake but maintains that a corrective instruction can mitigate any prejudice which flows from it. Following my assessment of the other alleged improprieties in the Crown’s closing address, I must assess whether a declaration of a mistrial is warranted.

C. Was it improper for the Crown to advise the Jury that Ms. Hall was an unreliable witness?

[16] Ms. Goldlist has not provided any caselaw for her contention that it was improper for the Crown to tell the jury that the evidence of one of its witnesses was unreliable. The Crown advised the jury that:

The reality is that, in light of the shock, the panic, and the extreme trauma of that night, Cheryl’s entire recollection is unfortunately but understandably unreliable. Her initial statements to police were clearly wrong in a number of respects: when she said there were four intruders, when she said the intruders had multiple guns, when she said the main shooter wore a red hoodie, when she said that all four of them were shooting at Brandon. Her mind was not able to initially even process the fact that she herself had been shot, let alone the fine details of the brief observations she saw as her son was gunned down in front of her.

[17] I fail to see how this submission to the jury was improper. The Crown provided reasons why they take the position that Ms. Hall’s identification of the shooter as a short, stocky black male is unreliable. It is up to the jury, as they have already been instructed, to ascribe whatever weight it deems appropriate to any part of a witness’ testimony or to any other evidence in the trial. To that extent, I find nothing improper in the Crown’s submission to the jury regarding the reliability of Ms. Hall’s evidence.

D. Mocking the Defence counsel and the Evidence called by the Defence

[18] The Crown does not dispute that on some occasions, he appeared to have made fun of the positions taken by defence counsel and the evidence of Mr. Wright or made light of it.

[19] There is no doubt that in the cut and thrust of criminal advocacy, passions sometimes become inflamed and counsel gives short thrift to the evidence of the other side or submissions of opposing counsel. The essence of professionalism, however, requires counsel to resist the temptation of surrendering to these passions. Furthermore, as a number of cases have stated, the Crown has a duty to be balanced and professional and avoid resorting to tactics that detract from this duty. In my view, the Crown did breach this duty during his submissions but not to an extent that would justify the declaration of a mistrial.

E. Evidence Regarding how a TACC Team Enters a Home

[20] Arguably, the news and social media are replete with images, stories, and movies about how a TACC team enters a dwelling. The Crown made reference to this topic while commenting about Mr. Wright’s testimony regarding how MGM gained entry into Mr. Hall’s residence. While in my view, this reference to the TACC team’s manner of entry into a residence was unnecessary, I fail to see how it prejudiced the defence in any way. To that extent, this issue does not justify a declaration of a mistrial.

F. Reference Regarding the Height of the Front Door of Mr. Hall’s Residence and the distance between a concrete ledge and the door

[21] During his submissions the Crown ascribed a particular height, i.e. seven feet, to the door and a particular distance between a concrete ledge and the front door. There was no evidence called in the trial regarding the actual distances in question. In my view, it is not improper for the Crown to opine, based on the photographs of the door that have been marked as exhibits in the trial, on the height of the door or of any other aspect of the scene. Any prejudicial effect of this opinion would be mitigated by the instruction, already given to the jury, that what the Crown and defence counsel say in their addresses is not evidence, and by the exhibits which enable the jury to come to their own conclusions regarding the height of the door and any distance relating to the entrance of the apartment. To that extent, this alleged transgression cannot justify the remedy sought by defence counsel.

G. Consciousness of Innocence

[22] During his submissions the Crown advised the jury that there is a phrase “we use called ‘consciousness of innocence’”. Ms. Goldlist submits that by using this phrase, which is unknown in law, the Crown “invented” a legal principle to bolster his contention that by agreeing to give a DNA sample, MGM was not involved in Mr. Hall’s death.

[23] The Crown makes two submissions in response. First, Mr. Maund relies on R. v. S.C.B. (1997), 119 C.C.C. (3d) 530 (Ont. C.A.), at para. 33, for the following proposition which he submits is equally applicable to MGM who has been accused of being involved in Mr. Hall’s death:

The admissibility of after-the-fact conduct by an accused to support an inference that the accused did not commit the crime alleged should be approached on a principled basis. If the evidence is relevant, its probative value is not substantially outweighed by its prejudicial effect and it is not excluded by some policy-driven exclusionary rule, the evidence should be received when proffered by the defence.

[24] Second, Mr. Maund denies that Mr. Coughlin “invented” a legal principle, given that the phrase, “consciousness of innocence,” has been referred to in at least seventy-nine cases.

[25] In my view, there is nothing improper in the Crown advising the jury that the voluntary consent to give bodily samples for the purpose of a DNA analysis may be evidence of his non-involvement in Mr. Hall’s murder. The Crown cannot be faulted if the defence did not address this during their submissions. MGM testified that he would not have given a DNA sample if he had been involved in Mr. Hall’s death. The fact that MGM initially refused to provide DNA samples may also be part of the evidence that the jury assesses to decide if they accept some, all, or none of MGM’s evidence. As a result, there is nothing improper about this submission to the jury.

H. The Crown’s suggestion that MGM had lied about a third party called “Chief” in order to help Evan Wright despite the fact that this was never put to MGM

[26] The defence cross-examined MGM extensively about his testimony that Evan Wright confessed to him and about his three statements to the police. MGM admitted to lying to the police in his first two statements. He also admitted to giving the police the names or nicknames of a number of persons including one known as “Chief”. MGM conceded that he tried to send the police on a wild goose chase by having them investigate these persons. Asked why he did not mention Evan Wright’s name, he replied that he was fearful of the street code which stated that “snitches get stitches”. Within this context, there was nothing overtly improper about the Crown’s submission that MGM lied about Chief to protect or help Evan or to avoid detection.

[27] The jury can agree or disagree with this submission. Indeed, they may well reject it outrightly. However, in my view, there is nothing improper about the inclusion of this suggestion in the Crown’s submissions.

I. Whether MGM knew that Mr. Fitzpatrick had been arrested before his November 21, 2018 police statement

[28] In the Crown’s re-examination of MGM, he testified that when he spoke to the police on November 21, 2018, he knew that “Flip” had been arrested. To that extent, it was not improper for the Crown to submit that if MGM had lied to the police to cover his own involvement in Brandon Hall’s death, he would have lied to the police to implicate Philip Fitzpatrick.

J. The Failure of the Defence to call Evan Wright’s mother as a witness

[29] Mr. Caramanna submits that it was improper to suggest to the jury that Evan Wright had failed to call his mother as a witness.

[30] During the trial, the Crown put to Mr. Wright that MGM and himself were about the same height. Mr. Wright disputed this. The Crown presented some photographs taken by the police on September 17, 2018, which showed Mr. Wright in the company of MGM. Mr. Wright denied that the photographs of the two clearly confirmed that Mr. Wright was the same height as MGM. Mr. Wright also testified that he knew he was approximately 5’ 10” tall in June 2018 because his mother had measured him. During his jury address the Crown stated that there was no corroboration of Mr. Wright’s testimony that his mother had measured his height with a tape measure, as he testified. Based on the above, it does not appear that the Crown suggested that Mr. Wright was required to call his mother as a witness to confirm his testimony regarding her measurement of him. Even if he had done so, this statement would have to be considered in the context of his caution to the jury that the accused were not required to call any witness and that the defence did not have to prove anything. Given his assertions to that effect, I cannot conclude that the Crown’s reference to Mr. Wright’s mother was improper in the circumstances of this case.

K. The Crown’s reliance on his own personal experience regarding how the local Minister of Transportation (“MTO”) measures the height of members of the public

[31] This issue related to a broader issue in the trial namely, whether Mr. Wright was taller than MGM in June 2018. Mr. Wright maintained that he was while the Crown put to him that he was the same height as MGM.

[32] Cst. Paul Correia testified that during a search of Mr. Wright’s residence on November 2, 2018, he found an Ontario photo licence identification card and birth certificate in a bedroom. The photo card had Mr. Wright’s name on it and indicated his height as 175 cm or 5’ 8.8”. In his closing address the Crown questioned whether eighteen-year-old Mr. Wright would ascertain his height by using a tape measure and suggested that the MTO measurement would be more accurate than Mr. Wright’s self reporting of his height.

[33] To the extent that the Crown referred to his own MTO experience, such a reference was improper. However, in light of the photo identification card found in Mr. Wright’s residence, there was nothing improper about the Crown suggesting, even if he did so rather inelegantly, that the more accurate information about his height was the information on the MTO photo identification card than Mr. Wright’s self reporting. This, in my view, is not improper since it did not impair the jury’s right to make its own assessment of the evidence on this issue.

L. The Crown repeatedly misquoted the evidence by telling the Jury that Jenna Parsons testified that Mr. Wright told her that, “I am going to kill Brandon before Brandon kills me”

[34] Ms. Parsons testified that Mr. Wright told her that Brandon was threatening to kill him. She then adopted her statement to the police that Mr. Wright told her that they were both threatening to kill each other over the phone. Mr. Wright denied saying that to Ms. Parsons. He testified, in reference to Ms. Parson’s evidence, that “it was a very easy mistake to make.” He testified that what he said to her was that, “I will have to kill him before he kills me.” He added that what he meant was that if Brandon Hall came to kill him, he would have to defend himself by killing Brandon.

[35] Based on this evidence, I cannot conclude that the Crown misquoted the evidence. He may not have included Mr. Wright’s qualification that he did not say that he was going to kill Brandon. However, the Crown, as defence counsel did, reminded the jury that it is their recollection of the evidence that matters not that of crown counsel, defense counsel, or the trial judge.

M. Did the Crown “ambush” the defence by refusing to disclose the theory of the Crown’s case in reference to the issues of whose DNA was on the yellowish/green glove found in the park and his failure to comply with the rule in Browne and Dunne?

[36] Mr. Caramanna submits that he did. He relies on the case of Rose v. Her Majesty The Queen, [1998] 3 S.C.R. 262, for the proposition that the defence is entitled to know the Crown’s theory of the case before the Crown’s makes his or her closing address.

[37] In Rose, the majority noted the following at para. 22 about the Crown’s jury address.

22 It is true, as my colleagues point out in para. 107, that Crown counsel (and indeed other counsel) should be accurate and should not put before the jury “assertions in relation to which there is no evidence”. However, while Crown counsel are expected to be ethical, they are also expected to be adversarial. As the Ontario Court of Appeal itself observed in [R. v. Daly (1992), 57 O.A.C. 70 (Ont. C.A.)] at p. 76:

A closing address is an exercise in advocacy. It is a culmination of a hard fought adversarial proceeding. Crown counsel, like any other advocate, is entitled to advance his or her position forcefully and effectively. Juries expect that both counsel will present their positions in that manner and no doubt expect and accept a degree of rhetorical passion in that presentation.

[38] At para. 66, the majority noted that “the general principle is that a mistrial is declared if the Crown’s jury address is so improper that it deprives the accused of the right to a fair trial: see R. v. Pisani (1970), [1971] S.C.R. 738 (SCC).”

[39] The Court also noted the following at para. 106,

We do not agree that the order of jury addresses significantly affects the knowledge that the accused will have, at the time of the defence address, regarding the Crown’s theory of the case and interpretation of the evidence. The accused who addresses the jury first may not know in precise detail the manner in which the Crown will articulate to the jury the reasons why it should find the accused guilty. However, the Crown will already have articulated its preliminary theory of the case at the opening of the trial, and will have made fairly clear any refinements or re-directions in this theory through the questions asked of witnesses and through the nature of the non-testimonial evidence adduced. There is no evidence which the Crown will be interpreting in its jury address of which the defence will not be aware. The defence will also know, as the result of events during the trial, the likely manner in which the Crown will present the evidence to the jury.

[40] The Court also noted at para. 107 that,

Counsel should not avert to any proven facts and cannot put before the jury as facts to be considered for conviction assertions in relation to which there is no evidence or which come from counsel’s personal observations or experiences.

[41] Has the Crown, in its closing address to the jury, breached its overarching obligation to advice the defence of its theory about the case before its address to the jury?

[42] From the onset of this trial, the theory of the Crown’s case was that the accused were engaged in a joint enterprise to kill Brandon Hall, presumably because Hall had stolen guns and money from Mr. Wright. That had been the Crown’s position at a preliminary hearing in March 2020, a subsequent review of the preliminary hearing judge’s decision to commit Philip Fitzpatrick to stand trial on first degree murder, and on an unsuccessful motion for severance. The Crown also set out its theory in its opening address in this trial and during his cross examination of Mr. Wright when he suggested to him, that both Mr. Fitzpatrick and he were involved in Mr. Hall’s murder. However, the Crown led evidence during the trial that the two cousins were very close, loved each other, while Mr. Wright regarded Mr. Fitzpatrick as “a big brother type.”

[43] Furthermore, the Crown called evidence from Mr. Fitzpatrick’s father and stepmother that Mr. Fitzpatrick owned a black Raptor’s sweater with a red heart in the chest area, and black sneakers with red laces. One of the two persons seen in the convenience store surveillance video was wearing similar coloured sneakers although both Shawn Wright and Jordana Diamond testified that the sneakers owned by Philip Wright were rough, old and “ratty.” The Crown also led evidence from Det. Hofstetter, who was qualified on consent as an expert on footwear impressions, that one of the footwear imprints on the door of the Hall residence was made by an unknown make and model of a Reebok shoe.

[44] Finally, under the doctrine of past recollection recorded, the Court heard evidence from Shawn Wright that his son Philip was similar in stature to the male seen in the surveillance video wearing the red Raptors sweater and the black shoes and red laces.

[45] Based on the above, I cannot agree that the Crown has failed to make its theory of the case against Mr. Fitzpatrick known to the defence. From the start, the Crown’s theory was that the killing of Brandon Hall was a joint enterprise between both accused.

[46] Mr. Caramanna submits that the Crown provided no evidence regarding the “how” and “why” of Mr. Fitzpatrick’s involvement in Mr. Hall’s murder. Regarding the “why” of Mr. Fitzpatrick’s alleged involvement, the Crown is not required to call evidence regarding an accused’s motive for being involved in a criminal offence. Jurors are typically instructed in a criminal trial that someone may have a motive to commit an offence or may not have a motive to do so. Regarding the “how”, of Mr. Fitzpatrick’s alleged involvement, the Crown’s relies on

a) DNA evidence found on the torn white latex glove,

b) the Reebok footwear imprint on the door of Mr. Hall’s apartment, and the evidence of Shawn Fitzpatrick and Jordana Diamond.

While it will be for the jury to assess the strength of this evidence, they collectively indicate, at least from the Crown’s perspective, how Mr. Fitzpatrick was involved in the shooting death of Mr. Hall.

[47] Mr. Caramanna submits that the Crown deliberately refused to concede that because of the DNA found on the yellowish/green glove found in Ashurst Park, Evan Wright was wearing this glove and that the Crown only conceded this point during his address to the jury.

[48] It is difficult to conclude that in so doing, the Crown “ambushed” the defence on this piece of evidence. The Crown is not required to disclose every detail regarding its theory for the simple reason that while its general theory is revealed through the trial, it may not have an explanation for every single piece of evidence.

[49] Mr. Caramanna submits that had the Crown conceded this point, he would not have spent so much time in his submissions on the DNA found on the yellowish/green glove. That may be so. However, there were no time limits imposed on counsel in their closing addresses to the jury. The Crown was required to end his submissions at approximately 3.50 pm on Wednesday, February 9, 2022, but only because a juror had requested to leave at 3.45 pm for a medical appointment. Other than this, it was the prerogative of counsel to spend as much or as little time possible in their respective jury addresses.

N. The Crown’s submission to the jury that Mr. Caramanna had no business telling them that he was certain that Evan Wright’s DNA would be on the white latex gloves found close to the murder scene and that Mr. Caramanna knew he should not have done so.

[50] Melissa Kell who has worked at the Centre for Forensic Sciences since 1997, was qualified on consent as an expert in the interpretation of bodily fluids for the purpose of DNA analysis. She tested a number of items received from the Peel Police involved in investigating Mr. Hall’s death including a torn latex glove found in front of 38 Martree Crescent and a yellowish/green glove found in Ashurst Park. A DNA profile was developed from the latex glove. Ms. Kell detected DNA mixture of three persons. She opined that Mr. Fitzpatrick could not be excluded as a contributor to this mixture. Ms. Kell testified that portions of the glove were missing including a thumb, finger, and part of the palm area. Only the inner part of the glove was tested. Later attempts to test the outer surface of this glove were unsuccessful because of contamination.

[51] The yellowish/greenish glove was also tested for DNA and a DNA profile was developed. A DNA mixture of three persons including one male was found. Ms. Kell opined that Mr. Wright and Mr. Fitzpatrick could not be excluded as a contributor to the mixture. She opined that the “likelihood ratio” that Mr. Wright was a contributor was greater than 60 trillion if the mixture related to Mr. Wright and two others than if they related to three anonymous persons. That for Mr. Fitzpatrick was 1 to [?] 100. Based on these results, Ms. Kell opined that if Mr. Wright was a contributor to the mixture that Mr. Fitzpatrick had to be excluded as a contributor to the mixture. Ms. Kell testified that a person can wear a glove once and either leave DNA sample or not leave a sample on the glove.

[52] Evan Wright testified that he tore off the glove from his hand after fleeing the murder scene and that he had also discarded the yellowish/green glove found in Ashurst Park. Mr. Wright also testified that he was wearing Mr. Fitzpatrick’s sweater when he discarded the latex glove. Based on the above evidence Mr. Caramanna told the jury that but for the missing portions of the white latex gloves, he was certain that Mr. Wright’s DNA would be on the white latex gloves.

[53] This is the context in which the Crown told the jury that Mr. Caramanna had no business telling the jury that he was certain that Mr. Wright’s DNA would have been on the latex gloves if parts of it were not missing or if it had not been contaminated. In my respectful view, it was not improper for the Crown to take issue with this submission to the jury. After all, Ms. Kell testified that someone could use an item without leaving DNA on it. The appropriate submission to the jury, in my view, should have been that in all likelihood or probability, Mr. Wright’s DNA would have been found on the glove if there were no missing parts.

O. The Crown’s submission to the jury that Mr. Caramanna and his client have an interest in influencing them that one of the persons captured on the surveillance videos had a dark eye socket.

[54] Mr. Caramanna submits that the Crown impugned his integrity as a lawyer by attributing unethical behaviour to him.

[55] No doubt the Crown could have stated to the jury that a conclusion that one of the males in the surveillance video was black would support the defence’s position that a black male was involved in the shooting. During his address, the Crown reminded the jury that they will have an opportunity to view the surveillance videos and to decide for themselves whether the eye socket of one of the males was dark.

[56] Viewed as a whole, I do not agree that the Crown improperly implied any unethical conduct on the part of Mr. Caramanna in his submission that the defence has an interest in the jury finding that one of the males had a dark skin.

P. The Crown improperly told the jury that Shawn Wright and Jordana Diamond had tailored their evidence to suit or favour the defence.

[57] It is not improper for either the Crown or defence to comment on the evidence of any witness called during the trial. Mr. Shawn Wright could not recall many things he had said to the police including telling them that the Raptors’ sweater, yellowish/green glove, shoes, and physical stature and height of the taller of the two males seen in the surveillance video, had had some effect on his belief that this male could have been Philip Fitzpatrick. Shawn Wright’s statement to the police to that effect was admitted as part of the evidence in this trial.

[58] The Crown’s comments regarding these two witnesses must be seen within this context and the repeated caution given to the jury that they can accept some, all, or none of a witness’ evidence. While the Crown could have simply invited the jury to consider these factors when assessing the evidence of these two witnesses, I find that his comment to the jury is not so improper that it constitutes grounds, individually or cumulatively, for a mistrial.

Q. The Crown “denigrated” the burden of proof in a criminal trial by telling the jury on three occasions that the crown was required to prove its case beyond a reasonable doubt.

[59] I disagree that the Crown has denigrated the burden of proof in the manner suggested by counsel. It is proper for either the Crown or defence to remind the jury of the burden of proof in a criminal trial. Indeed, Mr. Caramanna reminded the jury that proof beyond a reasonable doubt is closer to absolute certainty then to a balance of probabilities. In my view, there was nothing improper about this part of the Crown’s address to the jury.

CASES RELIED ON BY DEFENCE COUNSEL

[60] Defence counsel relies on a number of cases for the proposition that no corrective instruction can undo the cumulative effect of the Crown’s closing address and its profound adverse impact on trial fairness. Ms. Goldlist relies on R. v. Ramanathan, 2010 ONSC 5901, where the trial judge found that 24 out of 28 objections to the Crown’s jury address had merit. The Court noted at para. 36 that engaging in that number of corrections would leave the jury with an unbalanced view of the case. The judge declared a mistrial.

[61] In my view, the facts in Ramanathan are much more egregious than the facts in this case. Furthermore, there were many more objections in the Crown’s closing address than in this case. More important, the Crown’s conduct was much more serious in Ramanathan. For example, despite the trial judge deciding to take from the jury the theory that the fatal wound was caused by a broken beer bottle, the Crown proceeded to tell the jury that they could find that the accused used a bottle to murder the deceased. The other errors included, as noted by the trial judge at para. 35:

a) directly breaching my ruling on the available theories of causation to be put to the jury;

b) implying to the jury that there are arguments the Crown would like to make that the court had ruled the Crown could not make;

c) arguing to the jury that the police believe in the guilt of Mr. Ramanathan, and the innocence of the alternative suspect…;

d) implying to the jury that the Crown also believes in the guilt of Mr. Ramanathan and the innocence of Mr. Paramathanan;

e) telling members of the jury that they may disregard instructions from the trial judge if they do not agree with him;

f) mis-stating evidence concerning an out-of-court statement made by Sarmar Kushik, and then arguing that the jury ought to use this statement for an inadmissible purpose;

g) putting a portion of Mr. Ramanathan’s statement to police that was i) ruled inadmissible and ii) not in evidence before the jury;

h) implicitly impeaching the Crown’s own expert witness… in arguing that the forensic evidence demonstrated that the superficial wounds to Mr. Atwal were caused by a knife and not a broken beer bottle.

[62] Ms. Goldlist draws the court’s attention to R. v. Boudreau, 2012 ONCA 830, where the Court of Appeal set out some principles that are applicable to a Crown’s closing address. The court noted the following at paras. 15-16:

15. Both counsel are entitled to a fair degree of latitude in their closing addresses to the jury. As expressed by this court in [R. v. Daly (1992), 57 O.A.C. 70 (Ont. C.A.)], at p. 76:

A closing address is an exercise in advocacy. It is a culmination of a hard fought adversarial proceeding. Crown counsel, like any other advocate, is entitled to advance his or her position forcefully and effectively. Juries expect that both counsel will present their positions in that manner and no doubt expect and accept a degree of rhetorical passion in that presentation.

See also: R. v. Mallory, 2007 ONCA 46, 217 C.C.C. (3d) 266, at para. 339.

16. However, there are important and well-settled limits on Crown advocacy. While the Crown may argue its case forcefully, it must abstain from inflammatory rhetoric, demeaning commentary and sarcasm. The Crown must not misstate the facts or the law. The Crown must not invite the jury to engage in speculation or express personal opinions about either the evidence or the veracity of a witness: see Mallory, at para. 340.

[63] The Court of Appeal then noted at paras. 19 and 20 that,

19. However, the trial judge, on his own initiative, without any objection or request from defence counsel, decided to deliver an addendum to his jury charge. In his blunt and strongly-worded addendum, he identified and explicitly discussed several statements by Crown counsel that he considered fell into the realm of sarcasm and speculation. He also explicitly instructed the jury that counsel’s opinion of witnesses was irrelevant. Defence counsel did not object to these corrections, or ask for anything more or different, or, importantly, seek a mistrial.

20. In our view, the trial judge’s addendum effectively overcame any problems that might have been created by Crown counsel’s perceived sarcasm, stated opinions about the veracity of witnesses, or invitations to speculate. In many cases, appeal courts have accepted a timely and focussed correction by a trial judge of deficiencies in a Crown closing address.

[64] In R. v. McCaroll, 2008 ONCA 715, 283 C.C.C. (3) 404, the Court of Appeal set aside a conviction for second degree murder partly because the Crown had impugned the honesty of a witness by suggesting that the witness had lied about his involvement in the murder. The Crown did so despite the fact that at no time did he suggest to the witness that he had a motive to lie or was being untruthful (at para. 106). The Court of Appeal noted that the trial judge could have effectively corrected the unfairness the Crown had created by telling the jury that in assessing the weight to be given to the witness’ evidence, they may properly take into account the fact that he was not given the opportunity to respond to the Crown’s accusations of dishonesty.

[65] The same principle can be applied in this case. The Crown failed to cross-examine Mr. Wright on his testimony that he ran home after he left Mr. Hall’s home. The Crown told the jury that it was Mr. Fitzpatrick, rather than Mr. Wright, who was seen wearing a tank top on a catwalk walking and then running, and that the Crown’s to cross-examine Mr. Wright on this part of his evidence was an “oversight.” The jury should be specifically directed that despite this submission, the jury should consider the Crown’s failure to cross-examine Mr. Wright in assessing his evidence.

CONCLUSION

[66] The application for a mistrial is dismissed.

[67] The following corrective instruction will be read to the jury.

André J. Released: March 24, 2022