Not All Trials Are Created Equal

January 2023

Here at Titan Defence, we believe that Canada is one of the most vibrant democracies in the world with a comparatively fantastic Criminal Justice System (CJS) to boot. However, that does not mean that the CJS is not without its flaws and blemishes. Like all other aspects of our social fabric, the courtroom is vulnerable to the relevant stakeholders that are tasked with administering justice. That is at its highest level executed by the lawyers (Crown and Defence) and judges. Contrary to popular belief, these are human beings, with shortcomings like flawed logic, subconscious bias, an appeal to emotion, and all the other frailties of the human psyche derived from the human experience. This does not always boast well in an imperfect world with an ideal of perfection as the expectation goes in the court of law. 

To that end, our most recent jury trial success story was bittersweet. Counsel Kabir Sharma fought hard to present a thorough version of events to the jury to protect his client’s right to a fair trial. Here is what happened. 

This client was charged with a string of robberies which led to an investigation ultimately ending in a subsequent active pharmacy robbery involving four suspects. The first set of robberies lead to a police GPS tracker being installed on a motor vehicle. There was nothing linking our client to these robberies. The active robbery led to a brief exchange of gunfire as four suspects (one of them our client) made efforts to flee a police takedown. Two men were ultimately arrested at the scene. 

Our client was unarmed and shot in the face as he fled, which left him with a superficial scar. Given the frantic nature with which the incident unfolded, he believed it was the police who shot him. Fearing for his life he ran and got into the back of a stranger’s car to leave the scene (forcible confinement). After exiting that car, he ran to the back of a nearby pickup truck seeking further assistance from the family inside. Our client ultimately took the pick-up truck after all of the family exited the vehicle except for an eight-year-old girl who was, unbeknownst to our client, still in the back seat (carjacking robbery). Having driven away from an active police chase (dangerous driving), realizing the girl was in the back seat (kidnapping), he let the uninjured child out of the car some two minutes later and made good his escape. 

The case was covered extensively by the media. Our client turned himself in to the police three months after the incident.

The Trial

At trial, he was indicted on roughly seventeen charges, ranging from possession of stolen property and armed robbery to the most serious offence: kidnapping. Under the Criminal Code of Canada, if a person is charged with kidnapping a child under the age of sixteen, and they are not the parent of that child, upon conviction, they face a mandatory minimum sentence of five years imprisonment. That means they can potentially get a much higher sentence, but the lowest sentence a judge is permitted to pass, is five years for this one charge alone, regardless of the circumstances. Needless to say, the client’s jeopardy was grave. 

The first order of business at trial was to sever the first string of robberies. It is entirely at the Crown’s discretion to prosecute matters as they see fit both in substance and in form. Here the Crown chose to prosecute all charges together. In our CJS, however, we make our best efforts to make the task for juries simple. Here the initial five robberies had virtually no link to our client and would unnecessarily complicate their task. It was also highly prejudicial as it could potentially lead the jury to engage in “bad personhood” reasoning. The severance application was granted, and the trial commenced on the charges stemming from the date of the last robbery only and not the string of robberies from the dates prior. This was the first blow to the Crown’s case. The Crown now must indict and prosecute the previous robberies separately, with a similar fact application. In our view, the Crown has little prospect of success given the lack of evidence linking our client to these robberies, other than the generic similarity in which they were committed and the link with the subsequent robbery for which he had his trial. 

This is where the uphill battle started. On the first day of trial, our client pleaded guilty to the robbery of the pharmacy and took full responsibility for his actions. He contested all the offences that followed: forcible confinement related to entering a car and asking for help, carjacking robbery related to taking the pick-up truck from a family, dangerous driving in the commission of getting away from the police, and finally kidnapping related to the girl having been in the pick-up truck when he fled.

As a boutique litigation criminal defence firm, every serious file that we take on gets the attention of our entire team. This was no different. We pride ourselves on finding the essence of our cases and homing in on them. We do not run things frivolously nor do we take the shot-gun approach (no pun intended) to our litigation strategy of chasing every rabbit down every hole. As a result, we have established great rapport within the CJS and also take a fiscally responsible approach with our retainer fees in advancing the best defence for our clients. Given our focused approach, we fight tooth and nail on the points we believe are deserving of consideration and advancement in court and do not rest until a verdict has been rendered. In this case, the essence was simple, as counsel put it in his opening address to the jury, “this [was] not a case about who has done it, but a case about why”.

The theory of the defence was simple: our client committed a robbery (for which he took full responsibility) and was shot. He is a young black man and was unarmed when police fired shots in his direction as he fled. And given his state of mind in conjunction with the events as they unfolded, he reasonably believed it necessary to commit the offences charged to escape a situation that could mean a matter of life and death for him. 

In furtherance of this defence, we prepared our client well for his testimony. However, much of the story was also molded in the cross-examination of the Crown witnesses. 

At the time of these offences, the stories of unarmed black people murdered at the hands of law enforcement plagued the media and protests occupied cities across Canada and the United States. The heightened polarization in the relationship of distrust between the black community and the police was a critical contextual factor to establish in this case.

The owner of the pickup truck was also a black male. When police responded to the commotion around the truck, they believed him to be the suspect they were pursuing. Officers held him at gunpoint as he was ordered to the ground and handcuffed. On cross-examination, he stated that he feared for his life. That, although he was the victim in this situation, he thought of George Floyd and worried he too might be killed. This evidence directly supported the beliefs and mental state of our client. However, when Counsel asked the role that race played in his fear, the question was objected to on the basis of relevance.

The judge significantly restricted the ambit of Counsel’s cross-examination. Race was referred to as an ancillary issue and the jury was instructed that such questions were inflammatory and risked sending the trial off in the wrong direction. Counsel was further prevented from cross-examining the police officers on the topic of race. The potential influence of subconscious racial bias or institutionalized racism in policing were not permitted lines of questioning. Race was considered a distraction from the issues in this case. Further, cross-examination on the conduct and force used in arresting the two individuals at the scene was also not permitted. Despite being advanced by the Crown, it was held that since our client did not observe the arrest, it was not relevant to the defence and could not be challenged. 

We wanted to advance a narrative about race and bias in furtherance of our client’s state of mind. We were prevented from doing so, despite the social climate at the time with police shootings and the public outcry which ensued. 

Nonetheless, through effective cross-examination of Crown witnesses, counsel Mr. Sharma was able to point out the self-serving manner in which some police officers testified and got civilian witnesses (including the victims) to agree with his points to give credence to our client’s defence. Even after all these efforts, the judge did not permit the defence we hoped to advance to go to the jury. The contention being, ‘there was no air of reality’. 

The Result

Despite the numerous rulings against us, the jury acquitted our client of the two most severe charges, kidnapping and forcible confinement, and convicted him on robbery and dangerous driving (without the defence of ‘necessity’ these two charges were a non-started or dead-to-rights as we often say). 

Our client escaped the five-year mandatory minimum and will have his sentence significantly reduced. Our office is also taking the necessary steps to appeal the decision not to leave the defence of necessity with the jury and wait to argue that at the Ontario Court of Appeal.

While we secured an incredible result against all odds at this trial, we, unfortunately, did not fully succeed in administering justice in the way we had envisioned. On this, we feel strongly which is why we will continue to fight in this instance, even after a verdict has been rendered. Even in the face of our client’s gratitude. We believe that the jury is arguably the last bastion of our CJS. They are pure. They see through the nonsense. They need not drown themselves in years of schooling, legalese, or complicated jargon. They see things as they are, using a collective human experience rooted in logic and common sense. It is therefore entirely the jury’s task to determine questions of fact. They are well equipped to smell bullshit and as such should not frequently have judicial intervention in tasking them with what they need to do. Unless absolutely justified, the air of reality test should be administered conservatively and the defence should be left with the jurors. 

Not all arbiters look the same. They are restricted by their human experiences and often subconscious biases. “Most people, when directly confronted by evidence that they are wrong, do not change their point of view or course of action but justify it even more tenaciously. Even if irrefutable evidence is rarely enough to pierce the mental armor of self-justification” say Carol Tavris and Elliot Aronson in their book appropriately titled “Mistakes Were Made (But Not By Me)”. They also say that “we need a few rusted naysayers in our lives, critics who are willing to puncture our protective bubbles of self-justifications and yank us back to reality if we veer too far off. This is especially important for people in positions of power.” And that’s where we come in. We are the buffer between our clients and the CJS. We advance their version of events in a digestible way suited to the CJS. It is what we are tasked to do.

Not all trials look the same. Not all submissions are about pure innocence. We don’t believe our job is to secure an acquittal for every single case that comes to our attention. That is an impossible standard as is evidenced by the number of matters that actually make it to trial in Ontario. Our job is to ensure all our clients get a fair trial and a chance to put their best foot forward in mounting a defence. It is to ensure all the relevant stakeholders act fairly in coming to a decision on our client’s plight. It is to carry ourselves with fairness and empathy in mind. That is the essence of our practice. It is what legal warriors do in the most difficult of cases. It takes strength and perseverance, which is our commitment to all our clients deserving of such endeavors.

image of Sina Shabestary
by Sina Shabestary

Sina is a very well respected and well-liked lawyer amongst the legal community. He has worked as a Crown attorney, duty counsel, and criminal defence lawyer.