R v Petrin, 2016 ABQB 171

Court of Queen ’ s Bench of Alberta Citation: R v Petrin, 2016 ABQB 171 Date: 20160322 Docket: 140398751Q1 Registry: St. Paul Between: Her Majesty the Queen Crown - and - Joshua Petrin Accused Restriction on Publication Trial information in Absence of Jury – See the Criminal Code , section 648(1). Permission having been given to the jurors to separate, information concerning this portion of the trial must not be published, broadcast, or transmitted in any manner. NOTE: This decision is available from the court file, and it may be published after the jury retires to consider its verdict.

Editorial note: The restriction on publication ended March 10, 2017. ____________________________________ Reasons for Decision of the Honourable Mr. Justice M. David Gates Application for a Mistrial _______________________________________________________

[1] The Accused, Joshua Petrin, is charged with the first degree murder of Bryan Gower, alleged to have taken place on or aboutSeptember 26, 2012, at or near Lloydminster, Alberta. His jury trial commenced before a jury on February 29, 2016 at St. Paul, Alberta. Prior to jury selection, I heard a pre-trial application the week of February 22, 2016, at the conclusion of which I allowed the Crown’sapplication to introduce similar fact evidence. [2] On March 3, 2016, during the cross-examination of the Crown witness Brad Fox, Mr.

Petrin advised the court, in theabsence of the jury, that he wished to discharge his counsel, Mr. Adam Karbani. During a lengthy discussion with Mr. Petrin, again inthe absence of the jury, Mr. Petrin raised concerns relative to the scope of Mr. Karbani’s cross-examination of certain Crown witnesses,as well as Mr. Petrin’s concern that there was insufficient opportunity to consult with his counsel during the course of cross-examination. Mr. Petrin also raised a concern that Mr.

Karbani appeared to be in conflict with the Court, seemingly based on evidentiaryand procedural rulings made during the course of the trial. [3] At the conclusion of the discussion on March 3, 2016, Mr. Petrin and Mr. Karbani agreed that they would meet that eveningto try to address any differences that might exist relating to the conduct of the defence. Arrangements were also made to ensure that Mr.Petrin was given access to a telephone in order to seek independent legal advice. Mr. Petrin expressed optimism that he would be able toresolve any outstanding concerns with Mr.

Karbani. [4] The following day, March 4, 2016, Mr. Karbani advised the court that he had reluctantly come to the conclusion thatdifferences had arisen between Mr. Petrin and himself that made it impossible for him to continue to represent Mr. Petrin. As such, heapplied to be removed as counsel of record. Mr. Petrin advised the court that he supported Mr. Karbani’s application. At the same time,citing the difficult circumstances he found himself in the previous day, Mr. Petrin advised that he wished to withdraw his earlierstatement that he was discharging Mr. Karbani. The Crown opposed the application, citing Mr.

Petrin’s similar conduct in dischargingtrial counsel in his outstanding Saskatoon murder trial and urging the Court to view this as a tactic being employed by Mr. Petrin todisrupt the trial. [5] After having heard the submissions of both Mr. Petrin and the Crown, I granted Mr. Karbani’s application to withdraw ascounsel of record. The matter was then adjourned to March 8, 2016 at 11:00 a.m. to allow Mr.

Petrin an opportunity to contact LegalAid Alberta, as well as Vancouver based counsel who had previously represented him on his Saskatchewan charges. [6] On March 8, 2016, the matter was put over to 9:30 a.m. on March 9, 2016. [7] Mr. Petrin confirmed at that time that he had been in touch with Alberta Legal Aid and had also spoken to Vancouver-basedcounsel Marianna Jasper and Christopher Funt. Mr. Funt and/or Ms. Jasper were reported to have expressed a willingness to representMr. Petrin, subject to an appointment by Alberta Legal Aid and the negotiation of agreeable terms. [8] Mr.

Petrin then asked the Court to declare a mistrial. He cited a number of grounds in support of his application:

a) His previous counsel withdrew during the course of a jury trial and he is unable to retain new counsel ready to continue the trial onshort notice;

b) The amount of time allocated to the trial is insufficient in light of the Court’s ruling allowing the introduction of similar factevidence;

c) The Defence was denied any opportunity to review the Crown’s disclosure materials related to the Roth murder prior to the Court’sruling allowing introduction of similar fact evidence related to that event.

d) The Court permitted the witness Kyle Halbauer to give evidence in court without requiring him to be physically restrained. Mr.Petrin had previously alleged that he had heard rumours that Mr. Halbauer was out to get him following Halbauer’s appearance beforethe Court during the voir dire and prior to his attendance at trial.

e) The requirement for Mr. Petrin to be in leg restraints in the courtroom undermines the presumption of innocence and offendshuman dignity.

f) The Defence is unable to fully understand the impact of the Court’s ruling allowing the introduction of similar fact evidence;

g) The first witness called by the Crown was not properly sworn-in prior to giving evidence;

h) A Saskatchewan prosecutor, Mr. Cory Bliss, was interfering with this case;

i) The Crown improperly introduced unreliable evidence regarding Blackberry messages alleged to have been sent by Mr. Petrin andothers via X-Shield encryption without first conducting a voir dire and allowing the Defence to call evidence; [9] As previously stated, the application for a mistrial was heard by me on March 9, 2016. After hearing the submissions of theApplicant, Mr. Petrin, as well as the Crown, I dismissed the application and adjourned the trial to May 9, 2016, at 10:00 a.m. I advisedthe parties that I would file written reasons for my decision within 10 days. These are my reasons.

The Law [10] The law is clear that a trial judge has the discretion to grant a mistrial in appropriate circumstances. In R. v. Paterson (1998), (BC CA), 122 C.CC. (3d) 254 (B.C.C.A.), leave to appeal to S.C.C. refused 134 C.C.C. (3d) vi, the Court held thatthe power to grant a mistrial should only be exercised in the clearest of cases. It quoted with approval the following passage from R. v.Lawson (1991), (BC CA), 1 B.C.A.C. 204 (B.C.C.A.), at para. 93:

In the course of considering the authorities given to me by counsel, I have had to examine cases of stays of proceedings, mistrials, and of abuse of process which are all in one way or another closed related to what I would call the requirements of fundamental justice outlined in the Charter. There is one common denominator: all these cases say that these powers are to be exercised only in the clearest of cases. It is easy to see why this is.

The remedy contemplates what I will call ‘a fatal wounding of the trial process’, a wounding to the administration of justice which cannot be cured by remedial measures. [ 11 ] In R. v. Toutissani , 2007 ONCA 773 , the Ontario Court of Appeal held, at para. 9, that “[t]he declaration of a mistrial, like the declaration of a stay, should be granted only as a last resort, in the clearest of cases and where no remedy short of that relief will adequately redress the actual harm occasioned.” See also R. v. Cansanay , 2012 MBCA 103 . Analysis [ 12 ] The Accused is charged with a very serious offence.

If convicted, the Accused faces a mandatory sentence of life imprisonment without eligibility for parole for 25 years. Based on the Crown’s theory of the case, as well as the evidence adduced thus far in the trial, it is clear that the jury charge will be legally complex.

It is, accordingly, clear that the Accused would benefit from the assistance of legal counsel in order to properly defend himself and to ensure a fair trial. [ 13 ] While the Accused advanced a number of arguments in support of his mistrial application, it is clear that his primary reason revolves around the fact that he is now without counsel to represent him in this trial.

In my view, the appropriate response is to grant a short adjournment in order to allow him an opportunity to seek Legal Aid approval for the appointment of new counsel and to identify counsel who would be able to take on this case on relatively short notice. [ 14 ] At my request, the Accused, his former counsel, Mr. Karbani, as well as Crown Counsel, Mr. Rudiak, were all asked to contact Legal Aid Alberta to explain Mr. Petrin’s status as regards legal representation, and to urge Legal Aid to move expeditiously in view of the fact that this issue arises in the midst of a jury trial. As previously indicated, Mr.

Petrin reported that he spoke to Mr. Runt and Ms. Jasper between March 4 th and 9 th and confirmed their willingness to assume conduct of his defence. At my request, Mr. Rudiak also contacted Mr. Runt and Ms. Jasper during an adjournment on March 9, 2016, and determined that they have availability this fall to potentially continue this trial as Mr. Petrin’s counsel. [ 15 ] I am satisfied that the appropriate response to the Accused’s current lack of representation is an adjournment, not a mistrial. I am not persuaded that the evidentiary foundation to support a mistrial has been made out in this regard.

Indeed, the Accused expressed his agreement to the adjournment option save for a concern raised regarding the risk that juror might not honour their oath, or the opening instructions provided to them, and embark upon an independent investigation of the circumstances, witnesses and trial officials over the course of a lengthy adjournment.

With the agreement of the Accused and Crown Counsel, the members of the jury were re- instructed on these issues prior to the formal adjournment of the trial. [ 16 ] While I acknowledge that there are some risks associated with the adjournment of a jury trial, most particularly that one or more members of the jury may be unable to continue when the trial resumes, I am satisfied that an adjournment of the trial is the best option under all of the circumstances. [ 17 ] The Accused’s application for a mistrial on the basis that he is currently without counsel, and thus unable to properly represent himself, is dismissed. [ 18 ] I propose to briefly address the other grounds advanced by the Accused in support of his application for a mistrial.

In my view, there is no merit to any of them. Insufficient Time Allocated to the Trial [ 19 ] This trial was set for a period of two weeks. The Crown’s case would have been completed during the first week, save for the intervening events surrounding the withdrawal of the Accused’s counsel. I am satisfied that a one to two week period of continuous court sittings would, in all likelihood, be sufficient to complete this trial. If, for whatever reason, additional time is required, then the trial will continue until completed. Additional time will be made available, if required.

A mistrial is not an appropriate remedy in such circumstances, even assuming that more time may be required to complete this matter. The Defence was not provided with the Crown Disclosure Material Relative to the Roth Murder [ 20 ] During his oral submissions on the mistrial application, the Crown advised the court that Mr. Karbani, the Accused’s former trial counsel, had returned all of the disclosure materials previously provided by the Crown.

Included in these materials was the disclosure of the Crown’s case relative to the Roth murder. [ 21 ] I am satisfied that the Defence was provided with all of the required disclosure material in advance of the Crown’s application to adduce similar fact evidence, including evidence pertaining to the Roth murder. I would simply add that no concerns were raised at any time by the Accused’s former counsel regarding Crown disclosure. Kyle Halbauer was permitted to Testify without Handcuffs and/or Shackles [ 22 ] Security in the courtroom is a matter falling within the responsibility of the Court.

In the face of the Accused’s expressions of concern regarding his own safety and security during the testimony of the Crown witness Kyle Halbauer, the Court conducted inquiries of Mr. Halbauer’s RCMP security detail and the on-site sheriffs to ascertain the veracity of this alleged threat. I was satisfied, based on the responses provided, that there was no imminent threat to the safety or security of the Accused while Mr. Halbauer was present in the court as a witness. Nevertheless, I directed the addition of a third sheriff in the courtroom during Mr. Halbauer’s evidence. Mr.

Halbauer completed his evidence without incident. [ 23 ] In raising this issue, the Accused has not provided any legal basis upon which a mistrial application might be grounded.

Rather, this argument seems to be directly related to the fact that the Accused, himself, is in shackles in the courtroom. This issue is discussed below. The Shackling of the Accused in Court Undermines the Presumption of Innocence and Offends Human Dignity [ 24 ] At the outset of the trial, the senior Sheriff in St. Paul sought the Court’s permission to restrain the Accused in leg shackles and handcuffs throughout the trial proceedings.

At the outset of the trial, and in the absence of the jury, the Accused’s counsel asked the Court to allow the Accused to be permitted to take notes on a laptop computer and that his hands not be restrained in order to facilitate note-taking. I acceded to this request, though directed that the Accused was to remain in leg shackles. I further directed that the prisoner box in the courtroom be set up so as to block the jury’s view of the leg shackles. [ 25 ] As previously indicated, security in the courtroom is a matter falling within the responsibility of the Court.

Given the nature of the charge currently before the Court, the Accused’s other outstanding murder charges in Saskatoon, Edmonton and St. Paul, and the Accused’s alleged leadership role in gang activities, I am satisfied that additional security precautions are warranted in this instance. This additional security has been minimally intrusive and efforts have been made to ensure that the leg restraints are not visible to the members of the jury. [ 26 ] The Accused offers no legal authority for the proposition that leg restraints somehow undermine the presumption of innocence or offends human dignity.

He conceded during oral argument that this was something that he had read in a recent newspaper article. [ 27 ] In my view, this argument, as advanced, does not constitute a valid basis upon which to grant a mistrial. The Defence is Unable to Fully Understand the Impact of the Court’s Ruling Allowing the Introduction of Similar Fact Evidence [ 28 ] The Crown’s application to adduce similar fact evidence was heard on February 29 th , March 1 st , 2 nd and 3 rd , 2015. At the conclusion of oral argument, I adjourned to March 7, 2016 for decision.

On the opening day of the trial, following jury selection, counsel were advised that I was allowing the Crown’s application. The parameters of the permissible similar fact evidence were outlined, including two areas where certain details were not permitted to be adduced in front of the jury. The parties were advised that written reasons for the decision would follow.

These written reasons will be filed shortly. [ 29 ] It seems clear from the oral submissions of the Accused made during the course of the mistrial application that he disagrees with the Court’s ruling allowing the similar fact evidence to be placed before the jury.

If this is the case, then the Accused’s remedy would be an appeal to the Court of Appeal at the conclusion of the trial, assuming such an appeal would be available to him. [ 30 ] Following the oral decision, neither the Accused’s then counsel, nor the Crown expressed any uncertainty as to the scope of the similar fact evidence permitted to be advanced before the jury. Under the circumstances, I am satisfied that the Accused and his counsel were properly informed as to the results of the Crown’s application. In my view, this does not constitute a proper basis upon which to grant a mistrial.

The First Witness Called by the Crown Was Not Properly Sworn-in Prior to Giving Evidence [ 31 ] The Defence raised no concerns regarding any alleged irregularity in the receipt of the evidence of Cst. , the first witness called by the Crown during this trial. A review of the record reveals that this witness did take an oath to tell the truth in advance of his questioning by the Crown. There is, accordingly, no merit to this argument. A Saskatchewan prosecutor, Mr. Cory Bliss, Interfered in This Case [ 32 ] During the Crown’s submissions opposing Mr. Karbani’s application to withdraw from the record, Mr.

Rudiak made reference to the Accused’s alleged “history” of discharging counsel during trial. In particular, he referred to the number of counsel who had previously represented the Accused on his outstanding murder charge in the Province of Saskatchewan. He advised the court that he had spoken to Mr. Bliss, Crown Counsel employed by the Attorney General of Saskatchewan, who provided some information relative to the Saskatchewan prosecution, particularly, the various counsel who had represented the Accused. [ 33 ] In opposing Mr. Karbani’s application, Mr.

Rudiak characterized the actions of the Accused in discharging his counsel as a tactic employed to frustrate the completion of these proceedings. During oral argument on this mistrial application, Mr. Rudiak advised the court that Mr. Bliss did not offer any opinion or view as to the Accused’s possible motives in discharging his counsel in relation to the Saskatchewan case. As such, Mr. Rudiak accepted full responsibility for this characterization of the Accused’s motive relative to this proceeding. [ 34 ] Mr.

Rudiak was, in my view, entitled to refer to the Saskatchewan proceedings in support of his argument that the Accused had discharged his counsel as a tactic to undermine the completion of this trial. It was a submission only and certainly not something that the Court was in any way bound to accept. Indeed, the Court allowed Mr. Karbani to withdraw from the record notwithstanding the Crown’s objection. I would simply add that all of this took place in the absence of the jury. The Crown improperly introduced unreliable evidence regarding Blackberry messages alleged to have been sent by Mr.

Petrin and others via X-Shield encryption without first conducting a voir dir e and allowing the Defence to call evidence. [ 35 ] During the course of the voir dire , all of the Crown witnesses gave evidence regarding their regular use of individual Blackberries equipped with X-Shield encryption software to communicate with the Accused and other members and affiliates of the White Boys Posse gang. No objection was taken to the admissibility of any evidence pertaining to X-Shield communications stated to have taken place between the Accused and the various witnesses.

At the conclusion of the Crown’s evidence on the voir dire , the Defence declined to call any evidence. While Mr. Karbani suggested that the Crown may not have conclusively established that the Accused was actually a participant in some or all of these text communications, he conceded that this did not relate to the issue of

admissibility. [ 36 ] For the purposes of the voir dire , Mr. Karbani agreed that a series of screen-saves identified by one of the Crown witnesses as accurately reflecting an exchange of text messages he had with the Accused on October 19, 2012, could be marked as a full exhibit. The messages revealed that one of the participants was “Usual Suspects”, a screen name identified by a number of witnesses as being the Accused. At the same time, Mr. Karbani signalled his intention to ask the court to edit the exhibit before allowing it to be placed before the jury during the trial if ruled admissible.

The text messages in their entirety were ultimately entered as Exhibit #7 at trial. [ 37 ] I do not accept Mr. Petrin’s contention that this evidence should have been subjected to a separate voir dire within the voir dire already taking place regarding the admissibility of similar fact evidence. The evidence was prima facie admissible as being statements made by the accused to another witness. As previously indicated, the Defence did not challenge the admissibility of the evidence.

Rather, the Defence indicated that it would likely make arguments before the jury challenging the suggested link between the accused and the screen name “Usual Suspects” if the Court allowed the introduction of the similar fact evidence sought to be adduced by the Crown. [ 38 ] Having conceded the admissibility of the communication between the Accused and the various Crown witnesses, and having declined to call evidence on the voir dire , I am not persuaded that the Accused can now ask for a mistrial on the basis that this evidence was somehow improperly admitted into evidence.

This is not a situation where clearly inadmissible evidence was inadvertently placed before the jury. The Accused’s remedy, if any, lies in an appeal to the Court of Appeal at the conclusion of the trial relative to any of the legal rulings made by the Court during the course of the trial. [ 39 ] Any challenge that the Accused may wish to make to the accuracy or integrity of the X-Shield encrypted Blackberry messages may still be made through expert or other evidence to be adduced by the Defence during this trial. Conclusion [ 40 ] The Accused’s application for a mistrial is dismissed.

The trial is adjourned to May 9, 2016 at 10:00 a.m. for continuation. Heard at St. Paul, Alberta on the 9 th day of March, 2016. Dated at the City of Calgary, Alberta this 21 st day of March, 2016 M. David Gates J.C.Q.B.A. Appearances: Jeffrey F. Rudiak Esq. for the Crown Joshua Petrin

Appearing on his own behalf