



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sarrazin, 2016 ONCA 714

DATE: 20160929

DOCKET: C57000

Gillese, Rouleau and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Sarrazin

Appellant

Russell Silverstein and Ingrid Grant, for the appellant

Michael Bernstein, for the respondent

Heard: September 12, 2016

On appeal from the conviction entered on February 22,
    2013, by Justice Hugh R. McLean of the Superior Court of Justice, sitting with
    a jury.

Gillese J.A.:

[1]

On February 22, 2013, following a trial by jury, Robert Sarrazin (the
    appellant) was convicted of second degree murder for having killed Apaid
    Noël.  He was sentenced to life in prison with no parole eligibility for 18
    years.

[2]

This was the appellants third trial for Apaid Noëls murder.  He had been
    convicted in both of the two prior trials but had successfully appealed those convictions.
[1]

[3]

He appeals against conviction and asks for a stay of proceedings, on the
    basis that a fourth trial would constitute an abuse of process and violate s. 7
    of the
Charter
.

[4]

For the reasons that follow, I would dismiss the appeal.

BACKGROUND IN BRIEF

[5]

Apaid Noël was 21 years old on February 19, 1998.  In the early morning
    hours, he was with his brother Aschley Noël.
[2]
Aschley was five years older than Apaid and lived in Montreal but had gone to
    Ottawa to help his brother promote an upcoming March break party.

[6]

The two brothers were standing outside an Ottawa night club distributing
    flyers advertising the party.  The appellant, Darlind Jean and Wolfson Cétoute (together,
    the three men) were in the nightclub.

[7]

The appellant and Mr. Jean were long-time friends and members of CDP, a
    Haitian street gang in Montreal.  There was evidence at trial suggesting that
    Apaid was a member of a rival Montreal street gang.  There was a history of bad
    blood between the two gangs.

[8]

At about 2:45 a.m., the three men left the club and ran into Apaid and
    Aschley.  Aschley recognized Mr. Jean because they had been at high school together
    in Montreal.  There were discussions between the two groups and the situation
    escalated.  The three men left the area but soon returned and continued the
    confrontation.

[9]

According to Aschley, the appellant  who was holding a 12-gauge
    sawed-off shotgun  stepped forward and fired at Apaid, then advanced further
    and fired the shotgun again, at close range, into Apaids abdomen.  After a
    struggle, Aschley managed to get control of the shotgun.  He swung the shotgun
    at the three men.  Before the three men fled, Mr. Jean pleaded with Aschley not
    to turn him in to the police.

[10]

Aschley
    provided a description of the shooter at the scene, at the hospital, and at the
    police station. While at the hospital, he also identified the appellant in a
    photo lineup.

[11]

Apaid
    was discharged from hospital on March 13, 1998, but died 5 days later.  Dr.
    Johnston, a forensic pathologist, performed the autopsy and testified that the
    cause of death was a blood clot blocking the flow of blood to the lungs, likely
    brought on by complications arising after surgery.  Dr. Pollanen, a forensic
    pathologist, and Dr. Rodger, an expert in hematology and epidemiology,
    testified in support of Dr. Johnstons conclusion on the cause of Apaids
    death.

[12]

The
    appellant turned himself in to police on February 25, 1998.  Mr. Jean
    considered fleeing the country but the appellant convinced him otherwise,
    promising to plead guilty in exchange for Mr. Jeans freedom.  Mr. Jean turned
    himself in to police on March 3, 1998.  Both men were charged with attempted
    murder.

[13]

After
    Apaid died and the charges were upgraded from attempted murder to murder, the
    appellant changed his mind and pleaded not guilty.  Both he and Mr. Jean were
    convicted of second degree murder at the first trial.  They successfully appealed
    those convictions.

[14]

A
    second jury trial was conducted.  Again, both the appellant and Mr. Jean were
    convicted of second degree murder.  And, again, both successfully appealed
    against conviction.

[15]

Before
    the third trial, Mr. Jean pleaded guilty to manslaughter and was sentenced to
    time served.  He was released from prison after having served 15 years.

[16]

There
    were two main evidentiary issues at the appellants third trial:

(1)

Was the appellant the
    shooter?

(2)

Did the shooting cause
    Apaids death, which occurred over a month later?

[17]

At
    the third trial, both Aschley and Mr. Jean testified on behalf of the Crown.  Eight
    other independent witnesses also testified for the Crown.  Their evidence
    confirmed that of Aschley and Mr. Jean in a number of material respects, although
    none of the eight positively identified the appellant as the shooter.

Jury question

[18]

On
    the 14th day of trial at about 3:52 p.m., the trial judge received a note from
    the jury (the first note).  The first note consisted of three paragraphs,
    each of which was written in different handwriting.  The jury was excused and
    the first note was shown to counsel.

[19]

The
    first paragraph of the first note was a single sentence that read:

This is a shared concern for all jury members, to varying
    degrees & for different reasons.

[20]

The
    second paragraph gave some personal information about one of the jurors and
    asked what dangers there were to his/her life and his/her familys life from
    the CDP gang.  The third paragraph gave some personal information about one
    juror and said that he/she and his/her family felt vulnerable.

[21]

The
    trial judge was concerned because the second and third paragraphs in the first
    note revealed personal details about some of the jurors.  With the consent of
    the parties, the first note was ordered sealed.

[22]

When
    the jury returned to the courtroom, the trial judge told them that the first note
    had been sealed because it had information about some of the jurors personal
    lives and he was concerned about the personal information becoming a part of
    the public record.  The trial judge went on to say:

So, what I suggest that you do, if theres [
sic
]
    continuing concerns along that line, that you reformulate your comments but
    take out anything whatsoever that would identify you in any way whatsoever. 
    So, Ill let you retire and think about things and see what you want to do at
    this point.  All right?  Thank you.

[23]

At
    about 4:30 p.m. that same day, the trial judge was given another note from the
    jury (the second note).  The second note read as follows:

The jury does not require a response and withdraws the request.

[24]

Upon
    receiving the second note, the trial judge acknowledged that the jury had
    indicated that it did not need a response and had withdrawn its question. 
    However, before dismissing the jury for the day, he reiterated his willingness
    to consider any concern that they might have.  He said:

If theres anything that youre concerned about or theres any
    questions you have for me, please put them in writing, but my concern, as I
    said to you before, is just dont put  a jury is a group.  An individual thing
    should be  I dont think you need to quote, unless theyre absolutely
    necessary.  In certain circumstances, obviously, you have to do that kind of
    thing, but I just  certainly if theres any request you have for me or for
    anybody or that youre concerned about, please put them in writing and Ill
    deal with them when I receive them.  All right?  Thank you.  Good night.

[25]

The
    following day, defence counsel asked the trial judge to start an inquiry under
    s. 644 of the
Criminal
Code
to determine whether any of the jurors should be discharged because of the
    first note.  He contended that an inquiry under s. 644 of the
Criminal Code
was
    required to determine whether the jurys concern (as expressed in the first
    note) arose from evidence at trial or external information, and whether concern
    for their own safety might prevent jurors from discharging their duty according
    to their oath.

[26]

Crown
    counsel told the trial judge that his initial response was that the jurors had
    sworn oaths of impartiality and could be expected to follow their oaths. 
    However, he now thought that the way to proceed would be to tell the jury that
    at no time over the past 14 years has there been any complaint of any
    approach, threat or harm to any juror in this case followed by each juror
    being asked individually are you still able to render a true and fair verdict
    based on the evidence you have heard?  Each juror would then be told to leave
    the courtroom and individually indicate, in writing, yes or no to the
    question.

[27]

After
    further discussions with counsel about the way in which such an inquiry could
    be conducted, the trial judge decided against conducting an inquiry. He referred
    to the jurys sworn oath of impartiality and the presumption in law that jurors
    would abide by the oath.  He said that there was nothing in the first note to indicate
    that the jury would do anything other than abide by the oath of impartiality. 
    The trial judge concluded by saying that because the jury, on further
    consideration of the matter, had withdrawn its request, he did not see how he
    could make such an inquiry without entering into the jurys deliberations or
    asking the jurors to reveal their discussion in the jury room that had led to
    the withdrawal.

[28]

Out
    of an abundance of caution, the trial judge then reiterated to the jury the
    instructions he had given them the previous afternoon to the effect that if the
    jurors had any further cause for concern, they were to express those concerns in
    writing and he would do his best to answer them.

The Identification Evidence

[29]

Aschleys
    account of the shooting and that given by Mr. Jean were very similar.  Both
    testified that there was an argument between the three men and two brothers
    that became heated.  Both confirmed that the appellant disappeared and returned
    with a sawed-off shotgun that he used to shoot Apaid at close range.

[30]

The
    evidence of these two witnesses was confirmed in a variety of material ways by
    the other witnesses.  Two women who worked at the nightclub in question, and
    knew the appellant because he was a frequent patron, testified that they saw
    the appellant in the nightclub that night.  The bouncer at the nightclub
    testified that he had seen Mr. Jean at the nightclub on the night in question
    with two other men, one of whom was around the same size as Mr. Jean and the
    other who was smaller.  Two witnesses who were on the street during the
    incident confirmed other aspects of their testimony.  One described seeing a
    man with a gun standing over the victim, pointing down at him and then she saw
    him shoot the victim a second time.  The other heard an argument followed by
    two shots.  When she saw a body on the ground she went to help.  As she
    approached, [e]verybody disappeared except for a distressed young man with a
    gun in his hands.

The Crown Closing

[31]

In
    his closing address to the jury, Crown counsel said the following:

Fifteen years and one day from the date that Apaid Noël was
    shot down, the evidence youve heard in this courtroom is stronger than its
    ever been.  Its unusual, I think, for maybe evidence to get stronger as time goes
    along, but thats whats happened here, and its stronger because youve heard
    from Darlind Jean, who recently made the momentous decision to leave the gang
    behind and testify here in court and because youve heard from two experts, who
    have international recognition about the cause of the clot that killed Apaid Noël,
    how the shots from Robert Sarrazin led directly and inexorably to the clot that
    killed him.

[32]

Defence
    counsel unsuccessfully requested a mistrial as a result of these comments (the
    impugned comments).

THE ISSUES

[33]

The
    appellant submits that the trial judge:

1.

erred by failing
    to inquire into juror bias following the first note;

2.

gave inadequate
    and erroneous instructions on the issues of eye-witness and in-dock
    identification; and

3.

erred by failing
    to grant a mistrial after the Crown made the impugned comments in its closing
    address.

[34]

If
    the appeal is allowed, the appellant raises a fourth issue, namely, whether this
    court should order a stay of proceedings.  He argues that, in the
    circumstances, ordering a fourth trial would constitute an abuse of process and
    a violation of s. 7 of the
Charter
.

ISSUE #1              THE FIRST NOTE

[35]

The
    appellant submits that the trial judge erred in failing to inquire into jury
    bias following the jurys first note.  He maintains that the first note showed
    that the jury was afraid of the appellant and the gang to which he belonged and
    showed bias or raised a reasonable apprehension of bias.  He says that the fact
    that the jury withdrew the first note is of no import, given the jurors serious
    expression of fear for their safety and that of their families, contained in
    the first note.

[36]

I
    do not accept this submission.

[37]

The
    appellants position rests on the assumption that the first note showed that
    the jurors were afraid of the appellant and the gang to which he belonged and consequently
    had lost their impartiality.

[38]

With
    respect, this assumption is flawed.  The first note contains the jurys
    expression of concern about safety and feeling vulnerable.  As the trial judge
    observed, in the circumstances of this case, the first note does not give rise
    to a realistic potential for the existence of partiality.  To this I would add simply
    that the first note does not even refer to the appellant.  It refers to the CDP
    gang.

[39]

Further,
    as the trial judge indicated, there is a presumption in law that the jury would
    abide by its sworn oath of impartiality and he found nothing in the first note to
    indicate that the jury would do anything other than abide by that oath.

[40]

Moreover,
    the appellant has failed to appreciate the significance of the jurys
    withdrawal of the first note in two regards.

[41]

First,
    as the trial judge indicated, in light of the jurys withdrawal of the first
    note, an inquiry would have intruded on jury secrecy because the trial judge
    could not have inquired into the substance of the concerns in the first note
    without giving some consideration as to why the jury withdrew it.  That would
    engage the improper revelation of jury deliberations.  As this court emphasized
    in
R. v. Kum
, 2015 ONCA 36, 320 C.C.C. (3d) 190, jury secrecy is to be
    jealously guarded.

[42]

Second,
    the appellants reliance on
R. v. Ellis
, 2013 ONCA 9, 113 O.R. (3d) 641,
    is misplaced.

[43]

In
Ellis
, the police found a bag on the accused that contained crack
    cocaine and money.  The accused denied knowledge of the drugs and said the
    money was collected as part of a partners program with other members of the
    Jamaican community and he was the recipient of the money that week.

[44]

After
    some deliberations, the jury sent the judge a question asking whether it could
    consider, as evidence, the absence of other members of the partners program as
    witnesses.  While the judge was discussing with counsel how best to respond to
    the question, the jury indicated that it had reached a verdict.  Without any
    inquiry of the jury about whether it still required an answer to its question,
    the trial judge accepted the jurys verdicts finding the accused guilty.

[45]

This
    court allowed the appeal from conviction.

[46]

Watt
    J.A., writing for the court, held that, before receiving the jury verdict, the
    trial judge should have confirmed with the jury whether it required an answer
    to the question and given it the opportunity for further discussion before it returned
    its verdict (
Ellis
, at para. 67).  He stated that, for cases in which the
    jurys question reflects a legal misapprehension  or raises the prospect that,
    absent further instruction, the jury may be under a misapprehension about a
    governing legal principle  the trial judge should provide jurors with the
    appropriate corrective instruction and an opportunity to retire, to reconsider
    whether they require further time for deliberations (
Ellis
, at para. 66).

[47]

Unlike
    in
Ellis
, in this case the jury expressly withdrew the question and
    advised the trial judge that it did not need a response to it.  Thus, this was
    not a case where the jury reached a verdict while it had an unanswered
    question.  In this regard, it is worth noting that the trial judge was at pains
    to tell the jury several times that it could put any questions and concerns to
    him.  Furthermore and importantly, the concern expressed by the jury in the
    first note did not reflect a misapprehension of the law or governing legal
    principles.

[48]

Accordingly,
    this ground of appeal must fail.

ISSUE #2              THE IDENTIFICATION INSTRUCTIONS

[49]

The
    appellant submits that the trial judges warning to the jury about the
    frailties of eye-witness and in-dock identification evidence were inadequate. 
    He says that:

·

the instructions lacked the
    requisite case-specific content;

·

Aschley did not know the appellant
    so the trial judge ought to have told the jury that Aschleys certainty was not
    probative of accuracy;

·

the trial judges statement that
    in-dock identification really does not help was insufficient and he ought to
    have given the instruction from
R. v. Hibbert
, 2002 SCC 39, [2002] 2
    S.C.R. 445;

·

the trial judge ought to have
    mentioned that the witnesses had previously seen the appellant in the media, in
    police line-ups, and on multiple occasions in the courtroom at two previous
    trials;

·

the trial judge should not have
    suggested that the jurors consider that evidence; and

·

the trial judge ought to have reminded
    the jury that no independent eyewitness identified the appellant in the police
    line-ups.

[50]

In
    my view, when the trial judges instructions are read in the context of the
    charge as a whole, the instructions were appropriate and in accordance with the
    governing principles.  The trial judge generally and specifically cautioned the
    jury regarding the frailties of the identification evidence.  He conveyed to
    the jury all of the appropriate legal principles and reviewed the strengths and
    weakness of the eyewitness evidence.

[51]

The
    trial judge took the jury through each eyewitness evidence and gave
    case-specific commentary about its strengths and weaknesses at each point and
    how to use in-dock identification.  The trial judge gave extensive instructions
    on the dangers of wrongful conviction and the frailties of eyewitness evidence,
    including in-dock identification.

[52]

Moreover,
    this court held on the appellants first appeal that in-dock identification was
    not an issue on the facts of this case and that such a warning was not even
    required:
R. v. Sarrazin

(2005), 75 O.R. (3d) 485, at para.
    113.  The only additional witness in this third trial was a personal associate,
    who knew the appellant well.

[53]

While
    the appellant asserts that Aschley did not know the appellant, this case is not
    comparable to
Hibbert
or
R. v. Jack
, 2013 ONCA 80, 294 C.C.C.
    (3d) 163, because it does not rely entirely on eyewitnesses who were total
    strangers to the accused and who saw him only briefly.

[54]

For
    these reasons, I would dismiss this ground of appeal.

ISSUE #3              THE IMPUGNED COMMENTS

[55]

The
    appellant complains that the impugned comments suggested to the jury that because
    of Mr. Jeans testimony, the evidence against him was stronger than it had been
    in his two previous trials.  Because the evidence at the previous trials was irrelevant
    to the jurys consideration of this case, the appellant says the impugned
    comments were potentially prejudicial and the trial judge erred in refusing to
    declare a mistrial or even instruct the jury to ignore the Crowns comments.

[56]

I
    do not accept this submission.

[57]

The
    essential question raised by this ground of appeal is whether the impugned
    comments prejudiced the appellants right to a fair trial.  The trial judge is
    in the best position to assess the significance of the remarks of counsel, determine
    if the remarks need to be corrected and, if necessary, correct inaccuracies and
    remedy any unfairness that might arise from them:
R. v. Rose
, [1998] 3
    S.C.R. 262, at para. 126.

[58]

The
    trial judge was of the view that the impugned comments did not prejudice the appellants
    right to a fair trial.  I agree, for the reasons given by the trial judge.

[59]

As
    defence counsel conceded in response to the trial judges questions at trial,
    the impugned comments made no direct reference to the earlier trials.  In any
    event, as the trial judge noted, the results of the two previous trials and the
    circumstances surrounding the witnesses evidence were already known to the
    jury.  The impugned comments offered no new information, except the fact that
    the Crown thought that it had a relatively stronger case.  It should be noted
    that the Crowns view was based, in part, on the medical evidence about the
    cause of the blood clot that ultimately led to Apaids death.

[60]

Furthermore,
    as the majority noted at para. 127 of
Rose
, the trial judge was in the
    best position to determine whether remedial steps were necessary.  In this
    case, the trial judge gave an appropriate ameliorative instruction:

Just a note about retrials.  This case has been tried before,
    as we all know.  Do not speculate about what happened during or at the end of
    the trial or why there is another trial.  What happened there has absolutely
    nothing to do with your decision in this trial, absolutely nothing.  You must
    decide this case on the evidence that you have seen and heard given in this
    courtroom during this trial, and according to my legal instructions that you
    are now receiving to govern your deliberations and decision.  Nothing else
    matters, and that includes what happened at any prior trial.  That is the end of
    the story.

[61]

Finally,
    a trial judges decision whether to grant a mistrial is discretionary and
    subject to considerable deference on appeal:
Kum
, at para. 49.  I see no
    basis on which to interfere with the trial judges exercise of discretion to
    refuse to grant a mistrial.

ISSUE #4              A STAY OF PROCEEDINGS

[62]

As
    I would not allow the appeal, it is unnecessary to consider this issue.

DISPOSITION

[63]

For these reasons, I would dismiss the appeal.

Released: September 29, 2016 (E.E.G.)

E.E. Gillese
    J.A.

I agree. Paul Rouleau J.A.

I agree. David Brown J.A.





[1]

See
R. v. Sarrazin
(2005), 75 O.R. (3d) 485 (C.A.); and
R. v. Sarrazin
, 2011 SCC 54, [2011] 3 S.C.R. 505.



[2]

Because the two brothers have the same last name, to avoid
    confusion, I refer to them by their first names in these reasons.


