Court File and Parties
COURT FILE NO.: CR-20-307-00 DATE: 20220324
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: December 16, 2021
RULING ON MOTION RE: MISTRIAL APPLICATION
Justice André
[1] Defence counsel for Mr. Fitzpatrick and Mr. Wright bring a motion for a declaration of a mistrial on the grounds that, in his re-examination of a Crown witness named Marquis Grant-Mentis (“MGM”), Crown counsel adduced impermissible bad character evidence and has wounded trial fairness to such an extent that it could result in a miscarriage of justice. The Crown demurs and submits that his re-examination flowed logically from the cross-examination of the witness and that there is simply no merit to the application.
BACKGROUND FACTS
[2] Mr. Brandon Hall was fatally shot in his basement apartment by one or more persons at approximately 4:30 am on June 21, 2018. His mother, the only eyewitness to the shooting, gave two statements to the police hours after the incident in which she stated that an unmasked short, stocky black male with short black hair was the shooter. She subsequently reversed her account, after learning that the two accused, both of whom are white, had been charged in her son’s death.
[3] During the police investigation, the police obtained surveillance photographs of a meeting between Mr. Wright and a black male, called Marquis Grant-Mentis, during which Mr. Wright gave a pair of Air Jordan sneakers to MGM. The shoes turned out to be the same sneakers worn by one of two persons seen on a surveillance video approaching Mr. Hall’s residence before the shooting.
[4] MGM gave two statements to the police on October 17, 2018, and November 9, 2018. In the first, he mentioned the name of a person called “Chief” who he claimed had ripped off Mr. Hall by failing to give him counterfeit money he had paid $300 for. During these two statements, MGM denied any knowledge about Mr. Hall’s death. The police then charged him with the offence of accessory after the fact of murder. He was subsequently held in custody in Toronto. Days later, MGM’s lawyer contacted the police and on November 21, 2018, MGM gave a third statement to the police during which he stated that Mr. Wright had admitted to him that he, Mr. Wright, had fatally shot Mr. Hall. MGM also stated that Mr. Wright told him that Mr. Hall had stolen two guns and some money from him, that he wanted to get his guns back, and also wanted revenge against Mr. Hall.
[5] The Crown called MGM as a witness in the trial. He testified that he was friends with both Mr. Wright and Mr. Hall. MGM testified that he had smoked weed with both. He related that Mr. Wright had told him that Mr. Hall had stolen his guns and that he wanted them back. He also testified that before the shooting, Mr. Wright had shown him an SK or long gun. MGM tried to settle the dispute between the two, but Mr. Wright was not interested. Two to three months after the shooting, Mr. Wright told him that he had shot Mr. Hall. MGM added that Mr. Wright had cautioned him not to tell anyone about Mr. Wright’s involvement and that there would be problems if he did. MGM testified that he became scared for his life after Mr. Wright said that to him.
[6] The Crown asked MGM about his three statements to the police. About the first statement MGM testified that he did not tell the police because he was scared for his life. He said maybe he could get killed by Evan. He testified that he did not tell the police on November 9, 2018, about Evan’s confession and that Evan had accused Mr. Hall of stealing his guns, because he was scared.
DEFENCE APPLICATION
[7] Before the Crown completed his examination in-chief, the defence counsel brought an application to cross-examine MGM on his testimony that Mr. Hall was “in the streets” and had been involved in crimes such as robbery, fraud, and drug trafficking. They also sought to put to MGM that Mr. Hall had purchased counterfeit money from Chief.
[8] I ruled that eliciting evidence that Mr. Hall had been involved in a transaction to buy counterfeit money from Chief would be evidence of bad character. I ruled that I would not allow this evidence to be adduced because
a) it had little or no probative value and
b) that it could cause reasoning based on just deserts.
However, I permitted defence counsel to put to MGM that Mr. Hall had told him that he had been ripped off by someone. I made a similar conclusion with respect to Ms. Goldlist eliciting evidence that Mr. Hall was involved in street crimes.
[9] Both defence counsels cross-examined MGM extensively. They both exposed numerous inconsistencies between MGM’s trial testimony, his preliminary hearing testimony, and his statements to police. They got him to repeatedly admit that he had lied to the police. MGM denied that he was the shooter or that he had lied to the jury to save his own skin. Both counsels put to MGM that Mr. Hall complained that someone had ripped him off.
[10] Under cross-examination by Ms. Goldlist, MGM denied that he was scared of Mr. Wright implicating him in the murder. About his failure to tell the police on November 9, 2018, about Mr. Wright’s confession, MGM replied that “I was scared for my life”.
[11] Ms. Goldlist also cross-examined MGM about the “culture” of the streets. He agreed that friendship was fleeting and that loyalty was also determined by money. She then put to him that he had seen photos of Mr. Hall holding a large amount of money and had asked Mr. Wright to join him in a plot to rob Mr. Hall. During this robbery attempt at Mr. Hall’s home, he had fatally shot Mr. Hall after Mr. Wright had ran away from the scene. MGM denied these suggestions.
RE-EXAMINATION
[12] At one point in the re-examination of MGM on December 16, 2018, the following verbal exchange took place between the Crown and MGM:
Q. So Mr. Caramanna suggested to you that knowing what you did about Evan being mad at Brandon and having an SK that perhaps you should have gone to the police, Do you remember that suggestion?
A. Correct.
Q. Okay. Still earlier Ms. Goldlist was cross- examining you about the streets, do you remember being asked about the streets?
A. Yes, sir.
Q. Okay. Now, in your community amongst your circle of friends at the time, was there an attitude towards people who would go to the police and inform on other friends?
A. Yes, sir.
Q. And what’s that attitude?
A. A bad one.
Q. Yeah. What do you mean a bad one? Could you elaborate on that?
A. In – life – like life dangering.
MR. CARAMANNA: What was the answer? Life dangering?
THE COURT: Life dangering.
Q. Life dangering.
THE COURT: Is that what you said?
A. Yes, sir.
THE COURT: Is that what you said?
A. Yes, sir.
THE COURT: All right.
Q. Okay. Is there a word for people who go and inform the police on their friends?
A. Correct.
Q. What’s that word?
A. A snitch.
Q. A snitch?
A. Yes, sir.
Q. Is it a term you’re familiar with?
A. Yes, sir.
Q. Is being a snitch a good thing or a bad ting?
A. I don’t, I don’t seen it good or bad.
Q. Okay. Well, from your perspective does somebody want to be a snitch?
A. No.
Q. No, and why not? What happens to snitches?
A. They get stitches.
Q. Snitches get stitches?
A. So they say.
Q. Okay. And that’s what you’re referring to when you’re talking about life dangering, right?
A. Yes, sir.
Q. And aside from talking to the police to, you know, tell the police somebody did this crime or that crime, what about going to the police and just talking about people generally, not implicating them? Is it a good thing or a bad thing to give peoples’ names to the police?
A. A bad thing.
Q. And why is that a bad thing?
A. He’s basically done the same thing.
Q. And even if that person didn’t do anything wrong?
A. Correct.
POSITION OF MS. GOLDLIST
[13] Ms. Goldlist submits that:
a) The Crown engaged in an impermissible line of questioning and eliciting evidence from MGM that “snitches get stitches”. This evidence constitutes bad character evidence in that it had planted an evidentiary seed in the minds of jurors that the accused are capable or murdering persons while they are in custody. It has invited the jury to engage in impermissible speculation about the accused’s dangerousness and has left the jury with the impression that Mr. Wright has a criminal network outside. Ms. Goldlist submits that no limiting instruction can undo the propensity reasoning that the jury has been invited to engage in.
b) Despite MGM’s testimony that he was scared of naming anyone involved in the shooting, he pointed the police in the direction of Chief as the likely suspect during his very first interview. Ms. Goldlist complains, and not without justification, that the defence was prevented from calling evidence about Chief and was greatly prejudiced in the result. She submits that further cross-examination of MGM would leave the defence in a horrible light.
[14] Ms. Goldlist relies on R. v. Ramanathan, 2010 ONSC 5901; R. v. A.T., 2015 ONCA 65 and R. v. Suarez-Noa, 2015 ONSC 3823, in support of her position.
POSITION OF MR. CARAMANNA
[15] Mr. Caramanna relies on R. v. Boswell, 2011 ONCA 283 for the proposition that the Crown was obligated to seek leave to call the evidence regarding the phrase “snitches get stitches” and should have called an expert to elicit this evidence.
[16] He adopts the submissions of Ms. Goldlist and reiterated that while the defence had scrupulously adhered to the court’s ruling against eliciting evidence of Mr. Hall’s bad character, the Crown had, by adducing evidence about “snitches get stitches”, done the exact same thing that defence counsel were prevented from doing. That, he submits, is manifestly unfair to the accused.
[17] Mr. Caramanna further submits that the Crown should have sought a ruling to call this evidence but failed to do so. As a result, the Crown elicited evidence which Mr. Caramanna insists was in “another stratosphere of prejudice”. Worse, the Crown steered the witness through leading questions down a prohibited line of questioning. The Crown even asked the witness: “What’s scarier to you, getting killed or going to jail?” and further that MGM still feared the accused even if they were in jail. Mr. Caramanna insists that this line of questioning was “grossly inappropriate”. He submits that, despite MGM’s testimony regarding “snitches”, MGM had no difficulty snitching on Chief and that according to Ms. Goldlist, MGM referred to Chief 55 times in his first statement.
[18] Mr. Caramanna submits that the following factors collectively suggest that this evidentiary transgression by the Crown places this case in the category of clearest of cases that justify a declaration of a mistrial:
a) bad character evidence was the subject of a court order prohibiting the eliciting of such evidence;
b) counsel received a ruling limiting such evidence at the Crown’s behest;
c) the Crown cynically took advantage of the Court’s ruling;
d) the evidence regarding “snitches get stitches” is very powerful evidence that drives a dagger into the accused rights to a fair trial;
e) the Crown violated the very principles they insisted on;
f) the impugned testimony creates the impression that the accused are dangerous men, and that the jury cannot overcome this prejudice;
g) the Crown breached a just compromise regarding bad character evidence;
h) while the bar for the declaration of a mistrial is high, it cannot be so high that the Crown can call inadmissible evidence with impunity;
i) the cases particularly R. v. Pizzardi, 1990 CarswellON 5755, 9 W.C.B. (2d) 280 and R. v. Boswell, 2011 ONCA 283, support the declaration of a mistrial in this case.
THE CROWN’S POSITION
[19] In summary, the Crown suggests that defence counsel protests too much and that his re-examination arose from issues raised in cross-examination. He submits that Ms. Goldlist introduced the phrase “culture of the streets” and that he was correct in raising it. He also submits that Ms. Goldlist put to MGM that the police coerced him how to be when he went back to jail and that it was entirely appropriate for him to ask MGM about this. Finally, he submits that it was Ms. Goldlist who asked MGM why he was scared of Mr. Wright even while he was in custody and that it was appropriate for the Crown to re-examine MGM about this issue brought up by Ms. Goldlist.
ANALYSIS
[20] This application raises the following issue: Should the court declare a mistrial in this matter?
The Law
[21] The decision to grant a mistrial lies within the discretion of a trial judge “who must assess whether there is a real danger that trial fairness has been compromised”: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 79.
[22] A trial judge has broad powers to declare a mistrial where there is a real danger of prejudice to the accused or a miscarriage of justice: R. v. Burke, 2002 SCC 55, 2 S.C.R. 857, at paras. 74-75; R. v. A.G., 2015 ONCA 159, 319 C.C.C. (3d) 441.
[23] A miscarriage of justice occurs whether the trial is unfair, or when the trial has the appearance of unfairness as viewed by a well informed, reasonable person considering the whole of the circumstances: Khan, at para. 73.
[24] Before granting a mistrial, a court must be satisfied that no remedy short of that relief will adequately address the actual harm occasioned. It is, therefore, a remedy of last resort: A.G., at para. 50; R. v. Burke, at para. 77; R. v. Toutissani, 2007 ONCA 773, at paras. 9-10; R. v. Jeanvenne, 2010 ONCA 706, 261 C.C.C. (3d) 462, at para. 57. The declaration of a mistrial should only be made in the clearest of cases, where there has been a fatal defect impacting the administration of justice in a way that cannot be cured by remedial measures: R. v. Peterson (1998), 122 C.C.C. (3d) 254 (B.C.C.A.); R. v. Arabia, 2008 ONCA 565, 235 C.C.C. (3d) 354, at para. 46. This rule requires a finding that what happened was catastrophic to the fairness of the trial and incapable of being cured.
Application of the Law to the Facts
[25] I will first deal with Ms. Goldlist’s second submission regarding my ruling which prohibited any mention of the name Chief and reference to the fact that Mr. Hall had sought to purchase counterfeit money from him. I gave three reasons for this decision, namely, my concern regarding bad character evidence and the propensity reasoning which could flow from it, the lack of any probative value of this evidence and my concern that it could open the door for the Crown to seek leave to call bad character evidence relating to Mr. Wright.
[26] However, while defence counsel generally complied with my order, Ms. Goldlist did put to MGM that Mr. Hall was involved in street crime without further elaboration. Defence counsel was prevented from cross-examining MGM about the counterfeit transaction because it had no probative value. The failure to refer to the name Chief only has significance, in my view, given MGM’s testimony that he did not disclose Mr. Wright’s involvement to the police during his first two interviews because of the street culture and its code that “snitches get stitches” which scared him.
[27] In my view, my ruling on the bad character application had the likely effect of preventing the defence from challenging MGM’s testimony that he was scared to implicate anyone in Mr. Hall’s death. The reference to the name Chief would be evidence which the jury could rely on to assess the testimony of this important witness. To that extent, the defence has certainly been prejudiced by the failure to confront MGM that he had no difficulty mentioning Chief, despite his testimony that he was too scared to incriminate anyone in his first two police statements.
[28] That said, I disagree with defence counsel that only a declaration of a mistrial can cure this disadvantage suffered by the defence. It can be remedied by a less drastic measure such as allowing the defence to cross-examine MGM on the narrow issue of his disclosure to the police about Chief in his very first statement. Ms. Goldlist’s submission that this remedy would put the defence in a horrible light is unfounded, in my view. The jury could simply be advised that this measure has been taken because of an issue that arose during the Crown’s re-examination.
[29] Mr. Caramanna described the reference to “snitches get stitches” as existing within a “stratosphere of prejudices” that warrants a declaration of a mistrial. Both defence counsel questioned MGM about him being scared. They both put to him that he feared being implicated in Mr. Hall’s death rather than be scared of what would happen to him if he told the police that Mr. Wright was involved in the murder.
[30] Additionally, Ms. Goldlist specifically asked MGM why he was scared of Mr. Wright, even though Mr. Wright was in custody. MGM replied “that does not mean anything” or words to that effect. Ms. Goldlist did not press MGM any further on that issue. That, however, opened the door for the Crown to seek further clarification of why MGM was still scared while Mr. Wright was in custody.
[31] Mr. Caramanna relies on Pizzardi and Boswell in support of his submission that the use of this phrase “snitches get stitches” justifies the declaration of a mistrial.
[32] In Pizzardi, a witness testified that if he gave evidence against the accused, his life would be in danger. The witness also testified that he feared being killed by the accused. The trial judge declared a mistrial partly because the accused was made to look like the kind of person who perhaps can kill or beat people (at para. 12).
[33] However, the trial judge’s decision was largely the result of the fact that the witness was in a witness protection program, a fact that the Crown made known to the jury. The court concluded that protection has been given from someone whom the jury might conclude was the accused. That case, therefore, dealt with a protected witness.
[34] In this case, however, the jury has heard that MGM was released a few days after November 21, 2018. He has not been placed in a protection program. He has not alleged that Mr. Wright has sought to harm him. In my view, the evidence does not support a conclusion that the phrase “snitches get stitches” occupies a stratosphere of prejudice that justifies a mistrial.
[35] Boswell, contrary to Mr. Caramanna’s submission, does not stand for the proposition that evidence regarding the “Code of Silence”, which is implicit in the phrase “snitches get stitches”, require expert opinion to be admissible. In that case, a witness called “Sharp” falsely claimed to the police that he did not witness a fatal shooting. He later disclosed that he did. The Crown sought to leave expert evidence concerning the cultural values in high crime Toronto neighbourhoods and the “Code of Silence” that limited interaction with the police as a context for the witnesses’ failure to initially identify the shooter. The Crown called an expert to opine about the culture or Code of Silence in some impoverished communities in Toronto. The trial judge admitted the evidence. On appeal, the Court of Appeal found no error in the trial judge’s decision to admit this evidence. The court noted at paras. 22 and 23 that there was nothing wrong with Sharp identifying these factors as having influenced his conduct in the first forty-eight hours after the shooting. The court concluded at para. 23 that the fact that the witness decided to identify the shooter did not mean that a Code of Silence did not prevent him from doing so immediately after the shooting. The Court of Appeal also noted that it was for the jury, as the trier of fact, to determine what weight, if any, to assign to these considerations in assessing Sharp’s credibility.
[36] Similarly, in this case it will also be up to the jury to draw its own conclusions regarding MGM’s evidence and why he repeatedly lied to the police in his first two statements. Indeed, the jury will be instructed that they can accept some, all, or none of his evidence.
[37] Jurors are presumed to follow a trial judge’s instructions. They do not live a non-static existence in which they have been hermetically sealed from the community in which they live. Terms such as Code of Silence or a reluctance to speak to the police are not alien terms in a society where news about crime have inundated social media, television, and radio. With the appropriate instructions, jurors have the ability to limit their use of some evidence.
[38] Ms. Goldlist relies on R v. Ramanathan, 2010 ONSC 5901, in support of her position that a mistrial should be declared. This case, however, involved a jury address by the Crown which, according to the trial judge, was such that 24 of the defence’s 28 objections had merit, 14 of which required corrective instructions by the judge. The objections included the Crown advising the jury that they could disregard the judge’s instructions if they did not agree with them and directly breaching the judge’s ruling on the available theories of causation to be put to the jury. The trial judge declared a mistrial. Quite clearly, facts in this case are significantly more egregious than those in this case.
[39] In Suarez-Noa, the trial judge declared a mistrial following the Crown’s opening address in which she made references to the thoughts and opinions of the accused based on her review of the anticipated electronic evidence. In her address, the Crown referred to a movie where a small town had been besieged by “bizarre crimes of passion”. She then told the jury that the trial was about the “difference between reasonable human beings and animals”. The trial judge concluded that this reference that the accused had behaved like an animal was highly improper and “irremediably compromised” the fairness of the trial.
[40] In my view, Suarez-Noa is distinguishable from this case. Neither Mr. Maund nor Mr. Coughlin have made any disparaging remarks concerning either accused. MGM has testified about his fears of being harmed but has not testified that either accused has tried to harm him.
[41] In A.T., the Crown made inflammatory remarks about the accused’s religious beliefs in the Crown’s closing address to the jury. The Crown referred to Jim Jones and the Jonestown Massacre, Charles Manson, religious zealots, such as suicide bombers, and the Third Reich in his jury address. The accused was convicted of attempted murder and conspiracy to commit murder.
[42] On appeal, the Court of Appeal held that the trial judge had erred in law by failing to correct the suggestion that the accused shared characteristics with cult leaders and notorious religious fanatics. The court held that the Crown’s remarks and the trial judge’s failure to respond resulted in a miscarriage of justice. The court held that where a trial judge fails to remedy the harm caused by a clearly inflammatory, unfair, or significantly inaccurate jury address a new trial could well be ordered.
[43] Like Suarez-Noa, A.T. deals with inflammatory remarks made by the Crown about the accused. This is not the case here. Also, in A.T., the Court of Appeal overturned the conviction partly because of the trial judge’s failure to try to remedy the harm caused by the Crown’s jury address. In other words, the appellate court held the view that the trial judge could have taken corrective measures to mitigate the effect of the Crown’s statement.
[44] In this case, a limiting instruction and an opportunity to advise the jury that despite MGM’s testimony regarding being afraid of being known as a snitch, he identified someone who could have been involved in Mr. Hall’s murder, could remedy any prejudice to the accused based on MGM’s testimony. To that extent, the motion is denied.
André J.
Released: March 24, 2022