Keywords: Criminal law; first degree murder; co-accused; cut-throat tactics; withdrawal of counsel; appointment of counsel of choice; amicus curiae; severance; mistrial.
Synopsis: While Mohamed Zalal was in jail he had loaned his 9mm handgun to the Appellant, Nawaf Al-Enzi. Once released, Zalal demanded his gun be returned but Al-Enzi did not want to return it. The theory of the Crown was that Zalal was then lured into a car by Al-Enzi and two other men (Kayem and Abdul-Hussein) thinking he would get his gun back. While Kayem drove, Al-Enzi shot Zalal in the back of the head killing him. The men continued on and dumped Zalal’s body in a field. The Crown proceeded jointly against Al-Enzi and Kayem on charges of first degree murder. Abdul-Hussein (the Appellant’s brother-in-law) struck a deal with the Crown in which he provided a R. v. K.G.B.,  1 S.C.R. 740 statement to the police confirming it was the Appellant Al-Enzi who shot and killed Zalal. At trial Abdul-Hussein recanted his KGB statement and before his cross-examination was finished Al-Enzi’s counsel Gary Barnes withdrew from the case. Barnes informed the court he had conferred with the Law Society of Upper Canada and his withdrawal was mandatory pursuant to the Ontario Rules of Professional Conduct. The trial was adjourned approximately 9 months for Al-Enzi to find another lawyer. Despite best efforts and contacting over 100 lawyers across Ontario, no defence lawyer was prepared to represent Al-Enzi at that stage of the trial. Al-Enzi sought severance or a mistrial which was denied by the trial judge (Kealey, J.). The judge ruled Al-Enzi would instead have appointed an amicus curiae for the remainder of the trial. Al-Enzi was convicted and then appealed his conviction to the O.N.C.A arguing the trial judge erred in refusing to grant severance or a mistrial. Al-Enzi argued this resulting in a miscarriage of justice that deprived him of his right to a fair trial. The C.A. allowed the appeal, set aside the conviction, and ordered a new trial.
Importance: Laskin, J; writing for a unanimous panel of the C.A (including Goudge and Watt JJ.A.) noted that co-accused who engage in “cu-throat” tactics should only be tried separately in exceptional circumstances. A trial judge’s decision concerning severance or a mistrial are discretionary and entitled to deference on appeal. They merit intervention only if discretion was exercised unreasonably or the judge acted on a wrong principle (at para. 64). The legal presumption is that co-accused will be tried together unless the interests of justice require their separation (see Criminal Code s.591(3); R. v. Suzack, (2000), 141 C.C.C. (3d) 449 (Ont. C.A.)). Similar principles also apply to mistrial applications, with the paramount consideration being “whether there is a real danger of prejudice to the accused or of a miscarriage of justice if the trial were to continue: R. v. Burke, 2002 SCC 55 (CanLII)” (at para. 63). The trial judge’s severance ruling was unreasonable as it was the result of a flawed analysis in which he “asked himself the wrong question and thus acted on the wrong principle” (at para. 67). The C.A noted the trial judge thought he had only two options: 1) preserve the joint trial or, 2) allow Al-Enzi his counsel of choice at a separate and new trial (at para. 70). The analysis was flawed and the trial judge instead should have asked “would requiring Al-Enzi to proceed without counsel but with the assistance of amicus strike a reasonable balance between Al-Enzi’s right to a fair trial, the Crown’s interest in a joint trial and Kayem’s interest in the continuation of this trial?” (at para. 71). The Court concluded:
“This is one of those exceptional cases in which the interests of justice demand that Al-Enzi be given a new trial so that he can be defended throughout by his own counsel … the trial judge exercised his discretion unreasonably by denying Al-Enzi a severance or a mistrial so that he could retain a lawyer to represent him at a new trial. The appointment of amicus, even with an expanded mandate, was not an adequate substitute for counsel for Al-Enzi. The trial judge’s denial of a severance or a mistrial deprived Al-Enzi of a fair trial, both in appearance and in reality. It produced a miscarriage of justice.” (at paras. 68 and 96).
Counsel for Appellant: Marie Henein & Matthew Gourlay (Henein Hutchison LLP, Toronto)
Counsel for Respondent: Jamie Klukach & Gavin MacDonald (Crown Law Office Criminal, Toronto)