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| John Hill |
An appellate decision handed down on Feb. 16, 2024, in the case of R. v. Shaw 2024 ONCA 119, allowed the appeal against the conviction of Shakiyl Shaw, Lenneil Shaw and Mohamed Ali-Nur on murder charges focused on the decisions made at trial by Justice Robert A. Clark of the Superior Court of Ontario in the jury’s finding of guilt on May 23, 2019. Numerous grounds were cited critical of the trial judge’s handling of the case.
A bit of history puts this judgment in context. Justice Clark had been admonished by the Ontario Court of Appeal when it set aside the conviction of Adib Ibrahim for the manslaughter of longboarder Ralph Bissonette (R. v. Ibrahim 2019 ONCA 631). In that decision, the Appeal Court found Justice Clark’s instructions to the jury were “deficient” and would have been confusing. The court was also critical of the trial judge’s demeanour in his exacerbation of a stressful situation by using a raised voice and hostile and non-verbal communication.
Rudzhan Nagiev: ISTOCKPHOTO.COM)
Once again, in the Shaw case, the conduct of this Superior Court Judge has drawn the concern of Ontario’s top court. The murder victim, Jarryl Hagey, was shot at a Weston Road, Toronto Pizza Pizza restaurant in the early morning hours of Oct. 15, 2016.
The case seemed to rest on a proper identification of those involved. The only witness that could do so was Winston Poyser. Poyser had known the Shaw brothers a considerable time but claimed to have met Ali-Nur the day of the shooting. Poyser was certainly not an independent observer. Poyser was present in the car with the driver and the two shooters.
He provided the car used to drive the shooters to the Pizza Pizza. Because his car was visible on surveillance video, his evidence became the lynchpin in the Crown’s case in accusing the Shaw brothers and Ali-Nur. Poyser had dated a Shaw’s sister. He had identified Ali-Nur in a single photo lineup provided by police. His admitted involvement in the case raised obvious issues of credibility. The identification of Ali-Nur was also brought into question by defence counsel at trial, especially when he admitted to destroying his dashboard video recording by throwing it down a sewer.
The Court of Appeal, in granting the Shaw brothers a new trial, was critical of the trial judge’s conduct in responding to the jury’s question about the lack of corroborative evidence. During deliberations, the jury asked a question about the absence of corroborative evidence. Poyser’s credibility being an issue, the lack of evidence corroborating his evidence made it even more dubious.
The Court of Appeal stated that this was a case where the principle that a reasonable doubt may arise from the absence of evidence was important. Further, the trial judge failed to state that a reasonable doubt may arise from the absence of evidence. To the extent that his answer referred to gaps in the evidence and the principle of reasonable doubt, it did so in a manner favourable to the Crown by telling the jury that the evidence did not have to answer all the questions.
The Court of Appeal saw a question from the jury as a plea for help. Case law indicates that a complete and careful response is necessary even if the subject matter of the question has been reviewed in the main charge: R. v. Grandine 2017 ONCA 718; R. v. S. (W.D.), [1994] 3 S.C.R. 521; R. v. Stubbs 2013 ONCA 514; and R. v. J.B. 2019 ONCA 591. Here the court held, “a full and correct response to the question posed by the jury required two elements: first, an instruction to the jury not to speculate about why a witness or witnesses were not called; and second, an instruction linking their concern about absence of corroborating evidence to the burden of proof and the principle that a reasonable doubt may arise from the absence of evidence.”
The Appeal Court was also critical of the trial judge’s failure to advise a jury when the Crown, in its closing address, crossed the line and gave an opinion rather than strict reliance on the evidence.
The judge’s errors necessitated a new trial for the Shaws. The conviction of Ali-Nur was found to be unreasonable, and an acquittal was entered.
This judgment did not question the competence of the trial judge. Nonetheless, it remains an unfortunate blemish on his body of work.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.
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