R. v. Eeyeevadluk, 2017 NWTSC 38        S-1-CR-2016-000007

             IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

             IN THE MATTER OF:

                               HER MAJESTY THE QUEEN

                                       - V -

                                 KARMA EEYEEVADLUK

             _________________________________________________________

             Transcript of the Decision on the Mistrial Application

             by The Honourable Justice S. H. Smallwood, sitting in

             Yellowknife, in the Northwest Territories, on the 26th

             day of May, 2017.

             _________________________________________________________

             APPEARANCES:

             Mr. A. Godfrey:             Counsel for the Crown

             Mr. S. Fix:                 Counsel for the Defence

                    ----------------------------------------

                Charge under s. 344(1)(b) Criminal Code of Canada

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         1      THE COURT:             Karma Eeyeevadluk is charged

         2          with robbery contrary to Section 344(1)(b) of

         3          the Criminal Code.  She was tried before a jury

         4          from February 6th to 9th, 2017.  During the trial

         5          the Crown called five witnesses and the defence

         6          presented no evidence.  The jury deliberated

         7          for several hours before finding Ms. Eeyeevadluk

         8          guilty of robbery.

         9               Following the announcement of the verdict a

        10          conviction was entered, the jury was discharged,

        11          and the matter was adjourned to February 27th,

        12          2017, to speak to the date for sentencing.

        13          On February 27th Ms. Eeyeevadluk appeared

        14          with new counsel, Mr. Fix, who advised that

        15          Ms. Eeyeevadluk would be applying for a mistrial.

        16          The defence subsequently filed the application

        17          and supporting materials, and I heard submissions

        18          on May 12th, 2017.

        19               The defence seeks a mistrial on the basis of

        20          the evidence which was filed, which consists of

        21          an affidavit of Karma Eeyeevadluk and that of her

        22          counsel at trial, Tu' Pham.  Ms. Eeyeevadluk's

        23          affidavit refers to what she would say about

        24          the charge before the Court and attaches a

        25          statement she gave to the police.  In essence

        26          she denies having committed the robbery.  Mr.

        27          Pham's affidavit says that he canvassed with

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         1          Ms. Eeyeevadluk at the close of the Crown's

         2          case whether she wished to testify on her

         3          own behalf.  Ms. Eeyeevadluk was unsure,

         4          but ultimately advised Mr. Pham that she

         5          did not wish to testify.

         6               Following the closing of the evidence,

         7          and prior to the end of the pre-jury charge

         8          conference, Ms. Eeyeevadluk advised Mr. Pham

         9          that she now wished to testify.  Mr. Pham

        10          advised her that it was too late to testify

        11          as the defence had already closed its case.

        12          He was unaware that an application could be

        13          made to reopen her defence.  No application

        14          was made to reopen the defence and the matter

        15          proceeded.  The jury was charged and deliberated,

        16          returning its verdict of guilt.

        17               The first issue is whether I am functus

        18          officio; that is, whether I have any jurisdiction

        19          to declare a mistrial following the recording of

        20          the jury's verdict and the discharge of the jury.

        21          The decisions of the Supreme Court of Canada in

        22          Head, [1986] 2 S.C.R. 684, and Burke, 2002 SCC

        23          55, dealt with this issue.  The Supreme Court

        24          of Canada stated in Burke at paragraph 68:

        25

        26               The general rule has been that

        27               after the jury in a criminal

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         1               trial has been discharged, the

         2               trial judge is functus officio

         3               and lacks jurisdiction to reconvene

         4               the jury and inquire into the

         5               alleged error in the verdict.

         6

         7               The Supreme Court went on to determine

         8          that there is an exception to the general

         9          rule and stated at paragraph 69:

        10

        11               ...where the error is one that

        12               does not require the jury to

        13               reconsider the verdict or continue

        14               its deliberations with a view to

        15               handing down additional verdicts;

        16               there the trial judge retains the

        17               limited jurisdiction to recall the

        18               jury and conduct a narrow inquiry

        19               into the alleged error.

        20

        21               The Supreme Court of Canada also set out

        22          a framework in Burke for Courts to follow in

        23          this situation, and at paragraph 70:

        24

        25               The first question that must

        26               be asked is whether the error

        27               is one that requires reconsideration

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         1               of the verdict.  If it requires

         2               redeliberation of the verdict,

         3               there are no circumstances under

         4               which the judge will retain or

         5               otherwise possess jurisdiction

         6               to reconvene the jury and conduct

         7               an inquiry into the alleged error.

         8               The trial has concluded and the

         9               jury's function is finished.  The

        10               jury is not then permitted to change

        11               its mind.  If the error does not

        12               require the jury to reconsider

        13               its verdict, then the trial judge

        14               possesses jurisdiction to conduct an

        15               inquiry, the nature of the inquiry

        16               being whether the facts of the case

        17               disclose a reasonable apprehension

        18               of bias.  In determining whether

        19               this apprehension is raised, the

        20               trial judge must consider all of

        21               the relevant circumstances of the

        22               case, an important circumstance

        23               usually being the dispersal of the

        24               jury and its probable effect on the

        25               minds of reasonable members of the

        26               public.  If the facts disclose a

        27               reasonable apprehension of bias, the

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         1               trial judge's remedial jurisdiction

         2               is necessarily limited, such that

         3               the trial judge cannot alter the

         4               originally recorded verdict.

         5

         6               The case of R. v. Henderson, 2004 CanLII

         7          33343 (ON CA), considered the ability of a

         8          trial judge to declare a mistrial following a

         9          jury verdict.  The Court referred to the test

        10          in Burke, where the jury does not render the

        11          verdict it intended, that exception.  It also

        12          referred to a second exception where the accused

        13          wants to raise the defence of entrapment.

        14               In R. v. Halcrow, 2008 ABCA 319, the

        15          Alberta Court of Appeal considered whether

        16          a trial court retained a residual discretion

        17          to declare a mistrial several months after

        18          the jury was discharged.  The Court held that

        19          a trial court retained a residual discretion

        20          in narrow and limited circumstances in which

        21          the proper recording of the verdict was in

        22          doubt, but that:

        23

        24               It is preferable for an appeal

        25               court (should the respondent choose

        26               to appeal) to consider whether a

        27               new trial ought to be ordered, after

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         1               taking account of such matters as

         2               position adopted by his counsel

         3               during the trial.

         4

         5               That is at paragraph 33.

         6               I have read the cases provided by counsel

         7          and also looked at other cases.  In particular,

         8          I have read the Supreme Court of Canada's

         9          decision in Burke with a view to the defence's

        10          argument that Burke has been wrongly interpreted

        11          by appellate courts, that they have wrongly

        12          reviewed the decision as relating to the nature

        13          of the error when the focus should be on the

        14          sanctity of the verdict.

        15               With respect to my view the decision in

        16          Burke is fairly clear, and the questions to

        17          be asked are set out in the decision.  The

        18          first question I must ask myself is whether

        19          the error is one that requires reconsideration

        20          of the verdict.  If it does, there are no

        21          circumstances where I will retain or otherwise

        22          possess jurisdiction to reconvene the jury

        23          and conduct an inquiry into the alleged error.

        24          The alleged error in this case relates to the

        25          conduct of the defence.

        26               It is not a question of whether there

        27          was an error in recording the verdict or

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         1          that the jury did not return the verdict

         2          that it intended.  Whether it is characterized

         3          as an issue of the competence of counsel or

         4          some other ground, one of the questions is

         5          whether the defence case could have been

         6          reopened had an application been brought

         7          prior to the case going to the jury.

         8          My understanding is that in exceptional

         9          circumstances the defence can be reopened.

        10          Whether this case was that exceptional case,

        11          whether there was an issue of the competence

        12          of counsel are issues that were not argued

        13          before me, and are questions that are preferable

        14          that they be answered by an appellate court.

        15          My reasons should not be construed as positing

        16          an opinion on either of these issues.

        17               In my view, as this is a question of

        18          reopening the defence and calling additional

        19          evidence, which would necessarily involve

        20          reconsideration of the verdict, I do not

        21          retain any jurisdiction to reconvene the

        22          jury or declare a mistrial, the jury having

        23          rendered its verdict and having been discharged.

        24               Therefore, I am dismissing the application

        25          for a mistrial.  It is in Ms. Eeyeevadluk's

        26          best interests to have this matter proceed to

        27          sentencing and concluded quickly so that she

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         1          can consider her next course of action, whether

         2          she wishes to appeal or take some other course

         3          of action.

         4                           -----------------------------

         5

         6                           Certified to be a true and
                                     accurate transcript, pursuant
         7                           to Rules 723 and 724 of the
                                     Supreme Court Rules.
         8

         9
                                     _____________________________
        10                           Joel Bowker
                                     Court Reporter
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