Wednesday, 24 May 2017

A Canadian criminal court judge screwed up                                                         

Please note that in this article, I am going to refer to the shooter as BB, and a woman in the cab at the time of the shooting as CC so that their real identities won’t be known as per the order of the court. 

Early one Sunday morning in July 2007, Shawn James (the victim) was walking outside an apartment building on Bleecker Street in Toronto. A Beck Taxi with dark-tinted rear windows rolled up the street. Boysie Murray was the driver. (Boysie Murray is herein referred to as Murray) CC was the front seat passenger. BB a youth at that time was the only passenger in the rear seat.

The occupants of the Beck Taxi (borrowed from the cab driver by Murray) that early Sunday morning in July 2007 were well known to each other. They shared an interest in crack cocaine. CC was a crack addict who supported her habit by acts of prostitution. BB and Boysie Murray were drug dealers.

The taxi stopped as Shawn James walked along the street. The rear window opened. BB fired three shots from a semi-automatic 9 mm handgun. One of the shots struck and killed Shawn James. The taxi then drove off.

 All three of the occupants of the taxi were arrested. Each was charged with first degree murder. BB pleaded guilty to first degree murder in Youth Court. He received a youth sentence of ten years. CC pleaded guilty to being an accessory after the fact to the murder of Shawn James. She received a sentence of time served. (7 years)  Murray was sentenced to life in prison but he can apply for parole after serving 25 years. 

In large measure, the case for the Crown relied upon the evidence of CC. By the time of the trial, CC had ceased drug use and prostitution, upgraded her educational qualifications and was a second-year student at a community college.

CC provided information about the events that preceded the killing, the killing itself and what followed the shooting of Shawn James. Her testimony furnished the basis for the Crown’s claim that Boysie Murray aided BB in the planned and deliberate murder of Shawn James.                             

It was the evidence of CC that as she, Boysie Murray and BB. drove downtown Toronto in the Beck Taxi, Murray asked her to phone Shawn James on a cellphone. CC was unable to do so because her own cellphone, which contained James’ number, was still at Vanier Correctional Centre from which she had recently been released.

According to CC, as Murray drove the taxi up Bleecker Street, he said “there he is”. Murray drove around the block and drove up Bleecker Street a second time. Murray stopped the taxi near the walkway to 375 Bleecker. James walked in front of the taxi heading towards the front entrance of the building. CC. heard the rear window of the taxi being rolled down. She then heard shots. James fell to the ground.

  Murray asked BB. whether he had “got him”. BB said that he had. Murray accelerated away and headed back to the Scarborough apartment building from which they had departed for downtown. En-route, Murray stopped the cab and told CC. to clean the car. This she did.

 When CC., Murray and BB returned to the apartment, the driver whose cab they had used to go downtown to “re-up” their drug supply was still there. Murray and BB took off their sweatshirts. Each was wearing a bulletproof vest. CC fell asleep. When she woke up, she saw news coverage of the shooting of Shawn James on a local television channel. Murray was speaking on a telephone. CC. heard him say “the General is dead.”

The trial counsel for Boysie Murray challenged the credibility of CC and the reliability of her evidence. In essence, the lawyer alleged that CC was desirous of a favourable disposition on her original charge of first degree murder and for this reason; she concocted evidence against Murray, supplementing her original account with further details that implicated Murray as an aider and abettor of James’ murder with knowledge in advance of BB’s plan to shoot and kill James.

 The Crown also called BB as a witness at the trial. He was represented by a lawyer when he previously entered his guilty plea. His lawyer acknowledged, as did BB that the Agreed Statement of Facts read at the plea and sentencing proceedings correctly stated what had occurred.

At trial, BB read from the Agreed Statement of Facts filed in support of his guilty plea. He admitted that he shot Shawn James, but said that he never “accepted” the contents of the Agreed Statement of Facts. It was his evidence, oft-repeated, that he shot Shawn James when the opportunity to do arose. He said that neither Boysie Murray nor CC. knew in advance of the shooting what BB was doing.

I find that statement hard to believe. If Murray didn’t know that BB Was going to shoot the victim, why did he drive the cab to the scene and then drive around the block to where the victim was walking and then stop the cab? Why was he and Murray wearing a bullet-proof vest at the time of the shooting?  Why did Murray ask BB if he got the victim?  BB lied in his testimony re Murray’s non-participation in the shooting because BB didn’t want to be known as a rat.

 BB refused to answer questions about where and from whom he had obtained the gun he used to shoot Shawn James and from whom he bought drugs. In each case, he based his refusal on a concern for his life if he revealed his sources. I believe that was a genuine concern. 

  In some respects, his account was contradicted by the photographic record obtained from surveillance cameras in the taxi and at the Scarborough apartment building from which he CC. and Murray left and to which they returned after the shooting.

BB denied several specific allegations advanced by the Crown to establish Murray’s guilt as a party to a planned and deliberate murder. In particular, BB denied: (1)   that the dispute about the drug-dealing terrain on Bleecker Street involved Murray as well as himself with James; (2) that the occupants of the cab had first spotted James on Bleecker Street, then circled the block a second time before the shooting; (3)  that Murray said anything, in particular, “there he is”, before the shooting and had asked whether he (BB.) “got him” after the shots were fired; and (4) that Murray said “the General is dead” when a news report of the shooting appeared on the television at the Scarborough apartment.  

His statement that the cab they were in didn’t circle the street before BB shot their victim was obviously a lie since the cameras in the cab would show that the cab did circle the street.  I am surprised that he wasn’t charged with perjury.

Boysie Murray ( later referred to as “the appellant”) advanced five grounds of appeal. The appellant contended that the trial judge erred:

i.            by requiring the trial of the challenges for cause to be conducted by static triers if unsworn jurors were to be excluded from the courtroom during the challenge for cause procedure;

ii.            by frequently and improperly intervening and expressing opinions about the credibility of BB. and the reliability of his evidence, thus rendering the trial unfair;

iii.           in giving a  caution to the jury in connection with the evidence of BB., who was favourable to the defence, and in failing to point out evidence that was confirmatory of his testimony;

iv.         in permitting the Crown to put before the jury CC previous statements and further in instructing the jury that the testimony of CC. was enhanced by her previous consistent statements; and

v.            in misdirecting the jury on the standard of proof required to establish guilt.

The Challenge for Cause

It was common ground that a race-based challenge for cause was warranted at trial. The challenge proceeded on the basis of a single question to be asked of each prospective juror by trial counsel for the appellant. Murray is a black man.  Were they prejudiced against Murray because he was black?

The Selection of Triers of the Challenge

 In an appearance about three weeks before jury selection was to begin, the trial judge inquired of counsel (defence lawyer and the crown—the prosecutor) whether they had agreed on the method by which the trial of the challenge for cause would be determined. The trial judge described the available options in these terms:

The  question asked was, “Do you want the panel in or out? In other words, are you agreed to so-called static jurors as opposed to rotating? Because if you want rotating jurors, then I usually leave the whole panel in during the process.”

I will explain what is meant by static jurors.              

The Centuries-old method used in Canadian courtrooms to select a jury when the Crown or defence makes a “challenge for cause,” which often means determining whether the jurors are able to judge the accused without bias.   But first, the jurors have to be picked.                              

Prior to 2008, the only way to do that was to select two names from the jury pool who then become known as the “triers.” They then listen to a prospective juror being asked whether he or she can decide the case without bias. If the answer is yes, then they give their approval for the new juror to sit on the jury based on the response unless the crown (prosecutor) or defence lawyer objects to that particular juror sitting as a juror. Then one of the original two jurors leaves the courtroom and the remaining original juror and the third one decides on a fourth juror. Then the second original juror leaves the court room and the third and fourth juror decide on the fifth juror.  The procedure changed in 2008. Now both original jurors remain as part of the jury that is going to hear the case. They are referred to as the “static triers.” They alone pick the remaining jurors.

The appellant’s lawyer argued that the trial judge erred in ruling that if counsel wanted the unsworn prospective jurors excluded from the courtroom during the selection process, the trial of the challenge for cause would be determined by static triers. Treating the method by which the trial of the challenge would be determined as a binary choice, dependent on whether counsel wished unsworn prospective jurors in or out of the courtroom during the selection process was wrong.

 According to the appellant’s lawyer, where a challenge for cause is tried by rotating triers, (jurors) a trial judge has a discretion to exclude unsworn prospective jurors from the courtroom during the selection process. The amendment which created the static triers mode of trial of the challenge for cause – s. 640(2.1) – neither expressly nor impliedly ousted the well-established discretion of the trial judge to exclude unsworn jurors from the courtroom during the selection process using rotating triers. Exclusion preserves and promotes the impartiality of the selection process.

To put the available procedures as a binary choice is wrong in law. Its effect was to deprive the appellant of an available choice and his preferred method of trial, rotating jurors, with the unsworn prospective jurors excluded from the courtroom.

In the end, the appellant’s lawyer argued that he was forced to select a mode of trial of the challenge – static triers – for which he never expressed a preference, in order to preserve and promote the impartiality of the selection process by excluding unsworn prospective jurors from the courtroom during selection. This prophylactic measure was also available when the challenge was tried by his preferred method—rotating triers. The denial of this option created an unfair selection process and warrants a new trial.

Let me explain this better. Lawyers for the defence or crown can ask the court to dismiss a prospective juror for any reason that the lawyer thinks the juror will be prejudiced against his or her client.

However the static triers ( jurors ) who decided who sits on the jury aren’t asked a question by the defence or the crown if they are prejudiced against the defendant. 

The respondent (Crown) countered with the submission that although the trial judge did not expressly offer the appellant the option of choosing rotating triers with the unsworn prospective jurors excluded from the courtroom during the selection process, he (the trial judge) did not preclude defence counsel from seeking such a procedure for jury selection. The trial judge explained that with rotating triers he “usually” left the unsworn prospective jurors in the courtroom during selection, not that he always did so. Defence counsel never made submissions seeking any departure from the trial judge’s “usual” rule.

 In this case, the Crown had argued that the defence counsel was offered ample opportunity to decide on the mode of trial of the challenge. He chose static triers with the unsworn prospective jurors excluded from the courtroom during selection. The appellant’s lawyer’s preferred choice was rotating triers with the unsworn prospective jurors out of the courtroom during selection.  This is not a method of selection available as of right. The appellant’s lawyer has to demonstrate why exclusion of unsworn prospective jurors is necessary to preserve impartiality when rotating triers are to be used. But the appellant offered nothing in support of such an order. The trial judge cannot now be faulted for failing to direct a method of trial of the challenge that he was never invited to consider.

The Governing Principles

It is well established that after the evidence is submitted to the jury, a trial judge is no longer a mere referee, an ear and eye witness who must sit passively while counsel present the case as they see fit.  Not only should a judge intervene in the adversarial process, but also that sometimes intervention becomes essential to ensure that justice is done in substance and appearance.

Further, a trial judge may intervene to focus the evidence on issues material to a determination of the case and to clarify evidence as it has been given and is being given. The trial judge should also avoid the admission of evidence that is irrelevant and curtail the needless introduction of repetitive evidence. The trial judge should also dispense with proof of the obvious or uncontroversial and ensure the way that a witness answers or fails to respond to questions that does not unduly hamper the progress of the trial. And finally,  to prevent undue protraction of trial proceedings.

Trial judges should be cautious in the exercise of these various incidents of what might be compendiously described as the trial management power. For the most part, trial judges should confine themselves to their own responsibilities, leaving counsel and the jury to their respective functions.

As an aside with respect to the above paragraph in this article, I want to tell you of a case that took place many years ago. I was charged with obstructing a police officer (disobeying his order). At my trial, the judge suggested to the prosecutor than since Propane is an explosive substance, the police have a right to order citizens from the scene of a nearby fire if the Propane tank is too close to the fire. Propane is not an explosive substance since it is created to burn and not to explode. The Attorney General of Ontario confirmed that to me. Further, it was not the judge’s role to propose to the prosecutor of other possible evidence to be used against me.  A judge’s role is to give instructions with respect to procedures only. I was later pardoned and my record of conviction was subsequently ordered to be destroyed.  

The appellant fastened onto two further aspects of the instruction on standard of proof as reflecting error .He argued that the trial judge made a number of errors in his final instructions to the jury  which was detrimental to Murray. For example, The trial judge failed to include a direction that to find the appellant guilty, the jurors must feel “sure” of his guilt. The second complaint by Murray’s lawyer was that the judge’s instruction impeached the jury’s right to have a reasonable doubt of Murray’s guilt since the jury must be able to articulate in a logical and common sense manner the objective basis for that doubt. Such an instruction is wrong in law because it distorts and dilutes the burden of proof. Only a conviction requires the articulation of a reason for reaching the conclusion that Murray was guilty.  

The Court couldn’t find any fault about the appellant’s complaint re the above.

The second ground of appeal advanced by Murray’s lawyer asserted that the number and nature of interventions by the trial judge during the evidence of the defence-friendly Crown witness BB resulted in an unfair trial, thus constituted a miscarriage of justice that warrants a new trial.

The Court of Appeal agreed and ordered a new trial for Murray. I am however convinced that Murray will probably be found guilty again. After all, he was the driver of the cab when BB shot the victim and he circled the cab twice so that BB could get a good shot at the victim. 

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