Appeal court raps Crown for inflammatory closing

By Shannon Kari
Canadian Lawyer & Law Times
Jan 03, 2017

The Ontario Court of Appeal has concluded a senior Crown attorney acted improperly in a closing address to a jury when he compared the defendant to religious terrorists, mass murderers, and notorious cult leaders.

The actions of Mark Poland “fell well below the standard expected of Crown counsel,” said the court in ordering a new trial for a Kitchener-area man convicted of orchestrating a plan to have his three children kill his estranged wife.

“The Crown in this case engaged in multiple instances of prosecutorial misconduct,” wrote Justice Mary Lou Benotto. “His remarks were inflammatory, vindictive, sarcastic and ridiculing of the appellant,” added Benotto, with justices John Laskin and Katherine van Rensburg concurring in the decision issued Feb. 2.

The failure to provide a corrective instruction was an error in law by Superior Court Justice James Ramsay and rendered the trial unfair, the appeal court panel added.

A spokesman for the Ontario Ministry of the Attorney General says it is “carefully reviewing the decision. As the matter is currently within the appeal period, we have no further comment,” says Brendan Crawley.

The appellant, who can only be named as A.T. to protect the identity of his children, was convicted by a jury in March 2010 of attempt to commit murder and conspiracy to commit murder.

During the trial, the jury heard testimony from the children that their father told them to kill their mother by drowning her in the bathtub. An attempt was made, but the mother survived, the court heard. The father, a devout Mennonite, had a previous conviction for domestic assault.

His religious views became a central issue during the trial. The Crown displayed passages from the Bible on a screen in the courtroom and questioned the defendant about them during cross-examination.

Poland, who is now the senior prosecutor in Dufferin County, northwest of Toronto, was “fixated” on the religious beliefs of the defendant instead of “what, if anything, he had told the children,” said the Court of Appeal.

To support the notion that an individual can be influenced to commit murder, the Crown asked the jury to consider the Jonestown massacre in 1978 and the killings committed by followers of Charles Manson. References were also made to suicide bombers and the Nazis.

Poland told the jury he was not using the examples to liken the defendant to Jim Jones, Manson, or Adolf Hitler. However, after a brief “self-correction,” the Crown “immediately continued on with his comparative rhetoric,” wrote Benotto.

The Crown ended his closing with a reference to an integral part on a helicopter that is referred to as the “Jesus nut” because of the consequences if it comes off. Poland told the jury the “Jesus nut” of the defence was that the children were conspiring against their father.

“When [defence counsel] offers you a ride in his helicopter, my suggestion is you say, no thanks, that Jesus nut looks a little loose to me,” Poland stated.

The analogy “was no innocent metaphor,” noted the appeal ruling. “It is evident that he was calling the appellant a Jesus nut.”

Jill Presser, who represented A.T. in his appeal but not at trial, says the decision sends an important reminder about the long-standing recognition by the courts of the prosecution’s duty to act with moderation and impartiality.

“It re-emphasizes the role of the Crown and the trial judge in ensuring fair trials. The line of rhetorical excess is crossed when there is actual prejudice to the accused,” says Presser, a Toronto defence lawyer.

A spokeswoman for the Law Society of Upper Canada declined to say if it will investigate the Crown’s conduct. The regulator does not comment on any specific matter, or if it is investigating, “unless and until a matter has resulted in formal discipline, which would be public,” says Susan Tonkin.

The Court of Appeal ruling was issued the same day the Ontario Divisional Court upheld a suspension and costs order against Joe Groia, for incivility in his successful defence of former Bre-X executive John Felderhof on insider trading charges.

The Divisional Court upheld a one-month suspension and $200,000 costs order against Groia, ordered by a Law Society of Upper Canada appeals tribunal. Arguments by the law society that a court’s comments about a lawyer’s conduct are proof of misconduct, were rejected by the Divisional Court. However, it said comments or findings may be admitted as evidence at a disciplinary hearing.