R. v. Douglas

2017 BCSC 2581 R. v. Douglas IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Douglas, 2017 BCSC 2581 Date: 20170523 Docket: 62861 Registry: Chilliwack Regina v. Aaron David James Douglas Before: The Honourable Mr. Justice Verhoeven Oral Ruling re Application for Mistrial #2 Counsel for the Crown: C.A. McPherson, Q.C. A.M. Mandell J.C. MacRae Counsel for the Accused: K.R. Beatch Place and Date of Trial/Hearing: New Westminster, B.C. May 23, 2017 Place and Date of Judgment: New Westminster, B.C. May 23, 2017 [1] THE COURT: The defence applies for a mistrial. This is the second mistrial application brought by the defence. [2] The mistrial application is based upon certain evidence of the witnesses. [3] On cross examination Mike Hilliard disclosed that when the shootings occurred the accused Mr. Douglas had recently been released from prison. [4] Maureen Prince testified that she was not especially worried about Douglas actually shooting her when the gun was pointed at her. She said she did not think he was serious because she said that he had threatened her in the past. [5] The most serious concern is with respect to the evidence of the witness Theresa Lajeunesse. She was the former girlfriend of the deceased, Richard Blackmon. During the course of her testimony in chief, near the end, she was asked about a prior violent incident between Blackmon and Douglas. She responded by saying that she recalled a fight where she was present. She described it as a one-sided fight. She said that Blackmon punched Douglas over and over, and then Blackmon departed on foot. [6] However, she also added in some further facts that she was not asked about. She said, and I do not have it verbatim, but according to my notes, that Aaron [Douglas] went after him [Blackmon] with a gun. So this was after the fight. She said that she was not there, but that Douglas had told her about this, and that he could not do anything, or could not do whatever it was that he had in his mind. Counsel have listened to the testimony again on the recording system, and advise me that the testimony was something to the effect that [Douglas] couldn't do anything because they [Douglas and Blackmon] grew up together. [7] The defence argues, essentially, that if a mistrial was not justified previously, it is now, and argues, as it did before, that this trial has reached a tipping point, due to the cumulative effect of various items of evidence of discreditable conduct or bad character on the part of the accused. [8] Significantly, in my view, I dealt with the issue of evidence of discreditable conduct in detail in the Voir Dire Ruling No. 1. There, I canvassed the relevant case law, and decided that, in the circumstances of this case, it was necessary that the evidence concerning matters closely related to the events in issue would have to be heard by the jury, in the circumstances of the case. That included allegedly threatening behaviour by Douglas as against Matthew Dalke. Also, evidence about the events at the first Woodbine address. There, Douglas fired the handgun, shooting a bullet through the floor of the residence -- whether he did so accidentally or deliberately is open to question. But in any event, the evidence is that Douglas pulled the loaded gun out, and fired it. [9] There is also the evidence from Prince and Hilliard that Mr. Douglas pointed the weapon at each of them, independently, and in both cases raising discrete grievances involving each of them, and that he used the gun in an intimidating manner by pointing it at them. But then he put the gun away. [10] Theresa Lajeunesse was also present at the Woodbine address. [11] I do not need to say much more about the background, as I have covered that in depth on the ruling I gave on Voir Dire No. 1, and also touched on it again in the ruling I made in the first mistrial application, for which I delivered reasons on May 18. [12] I canvassed the legal test for a mistrial on the prior application, and so I do not need to repeat myself. [13] The defence relies most particularly again on the comments of Newbury J.A. quoted by Madam Justice Stromberg-Stein at para. 65 of Muller, [R v. Mulller, 2013 BCCA 528] from R. v. Pires; R. v. Lising, [2004 BCCA 33] which in turn refers to the principle enunciated in R. v. Khan. The principle there set out is that the mistrial must be granted if it was "likely that the exposure by the jury to the tainted information could have affected the jury to the point that the entire trial was compromised and that no remedy other than a new trial was available." [14] The defence argues that the test therefore is whether the jury could be affected and whether there is a real danger of prejudice to the accused. [15] I reiterate my earlier comments about the summary given by Madam Justice Stromberg-Stein in Muller, having in mind those comments in Khan and also the comments of Madam Justice Newbury in Pires; Lising. The words quoted from Khan, "could have affected the jury" cannot be read in isolation. The entire phrase must be borne in mind. That is, "could have affected the jury to the point that the entire trial was compromised and that no remedy other than a new trial was available". It is not a speculative endeavour into whether there is a possibility of this kind of prejudice. The test is higher than that. [16] Also, as I said earlier, the jury's ability to comply with instructions is a foundational necessity in our jury system, and that I think is one of the points that comes out of R. v. Corbett, as I said before. [17] This is a difficult case in many ways. The issues about discreditable conduct, and particularly the related, as I see it, discreditable conduct on the night in question, were the subject of pretrial conferences. Those concerns were known and identified in advance. As well, the possibility that Mr. Douglas's record, and indeed the fact that he had recently been released from prison might come up, was discussed at pretrial conferences. The fact that these matters have arisen is no surprise, given the nature of the case and the nature of the witnesses and their evidence. [18] The jury already knows that Douglas went to the apartment where the killings took place with a loaded weapon, and for a purpose. The jury has heard, in fact, evidence from the witnesses I mentioned that Douglas instigated the robbery of Penni White, which led to the subsequent events. So there is already a great deal of evidence of discreditable behaviour by Douglas, which one could say is in a sense prejudicial. That evidence is simply baked into the case. [19] The jury has heard ample evidence about the weapon, the effects of the discharge of the weapon, the technical evidence, the evidence about the consequences, the evidence of various witnesses, now Mr. Dalke and others, as to what led up to the events in question. Mr. Dalke is practically an eyewitness to the shootings. There will be other evidence from other witnesses, Penni White and Cole Berard, as to the events in the apartment. [20] As previously noted, the key issues in the case pertain to the mental element or mens rea with respect to the murder charges and the attempted murder charge, and Douglas's state of mind in relation to his self-defence argument. [21] The jury has to grapple with what exactly happened on the night in question and what precisely was in Mr. Douglas's mind when the weapon was discharged by him, several times. The basic facts are not going to be in issue. [22] As I believe I said in my reasons on the prior mistrial application (for which no transcript of the reasons is available) most of the main lay witnesses have a long history of association with each other, and are participants or members if you wish of the Chilliwack drug and criminal community. [23] The defence itself relies on facts relating to prior incidents of violence on the part of Blackmon, and in particular between Douglas and Blackmon. So Mr. Dalke and other witnesses were cross-examined about this. That is the context in which this particular evidence came out in the testimony of Ms. Lajeunesse. [24] Ms. Lajeunesse chose to make these comments, probably believing that they would be not of assistance to Mr. Douglas. Mr. Douglas, as she sees it, is the person who killed her boyfriend, and of course she has an animus against him. She is hostile towards him. This testimony probably could not have been prevented because I think Ms. Lajeunesse wanted to give it. I think inevitably the defence would have put the same questions to Ms. Lajeunesse in cross-examination. Therefore the fact that this evidence came out in chief on questioning by the Crown is of no consequence [25] I have been referred to R. v. Scopelliti (1982), 34 O.R. (2d) 524, concerning evidence as to the victim's propensity for violence. In this case the Crown has not objected to defence adducing evidence of the Blackmon's propensity for violence. The trouble is that the defence wants to bring out the propensity for violence of Blackmon but would prefer to keep out other evidence that the defence says is potentially harmful to the case of Mr. Douglas. That is a difficult thing to do. Not surprisingly, it has proven impossible in this case to tightly manage the discreditable conduct evidence as perfectly as one might like. It is likely that problem is going to continue. [26] In the prior mistrial application the Crown referred to the often repeated comments of Madam Justice McLachlin in R. v. Harrer, [1995] 3 S.C.R. 562, at para. 45, where she said: At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community. A fair trial must not be confused with the most advantageous trial possible from the accused's point of view: R. v. Lyons, [1987] 2 S.C.R. 309, at p. 362, per La Forest J. Nor must it be conflated with the perfect trial; in the real world, perfection is seldom attained. A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness to the accused. [27] Those words are often quoted, and that is for a good reason. They are accurate. [28] So perfection is often unattainable, and in the eyes of the defence is most certainly unattainable in this case. That would also be unattainable on any retrial of this case. [29] The defence argues that the evidence in question here, especially the Lajeunesse evidence, is troubling because it goes directly to the only real issue in this trial, which is the mens rea. This is not an identity case where the evidence could be very prejudicial in another way. The argument is that the evidence goes directly to the mens rea issue because it may well be interpreted by the jury as a prior incident in which Douglas developed a murderous intent with respect to Blackmon. [30] The evidence is clearly unfortunate. The real question is whether the jury will be able to properly focus on the real issues. They have already been warned about this evidence. I agree with the observations of the Crown that it certainly appeared that they fully understood the warning that they were given. It was similar to warnings that they had previously received, and were probably expecting to hear it again. [31] The jury has been told to disregard the evidence. However if contrary to the instructions the jury were to consider it, it has two sides. That is, Mr. Douglas said he could not do it. The jury has also heard evidence that Douglas made threats in the past that he has not carried out. That was in the testimony of Ms. Prince. [32] So I am not convinced that the evidence is as highly prejudicial as the defence argues, but I agree that there is a potential for prejudice. That is why the jury has been told to disregard the evidence. [33] The base question, in my view, is whether the jury will be able to properly focus on the real issues, having been properly instructed by me, and that is what was in Mr. Douglas's mind, what was his intent on the night in question, given all that they have heard, and all that they have been told is relevant, and ignoring those things they have been clearly told is irrelevant. [34] At bottom I remain confident that the jury will be true to its oath and carry out its task. They will understand their role and they will understand the legal principles involved. [35] The test for a mistrial has not been met. The application is dismissed. "Verhoeven J."