Trent grad running for B.C. premier

LINDSAY – Sentencing of a man found guilty of aggravated assault and robbery in connection with a July 28, 2014 shooting at Skyline Living ’s Time Square Apartment was postponed Tuesday after a comment made by a juror prompted a post-verdict inquiry.

Matthew Flannigan, 26, of no fixed address, will now return to Lindsay Superior Court of Justice on June 6 for an expected half day of submissions from defence lawyer Ariel Herscovitch and assistant Crown attorney Shonagh Pickens before Justice Chris Corkery.

Joseph Bellomo was shot in a second-floor hallway in the Hunter St. E building after returning home to find three armed men robbing his son Brandon, who he lived with. He recovered from life-threatening injuries that left him with a permanent disability.

Proceedings began with the trial judge reading a March 27 letter to the lawyers explaining how he received information from a court services officer that a juror said she “was not prepared to spend a night in a hotel,” or words to that effect.

Since he no longer has jurisdiction to call a mistrial, Corkery asked the lawyers to prepare submissions for a possible post-verdict inquiry and summoned the court services officers who worked the March trial to come to court Tuesday as potential witnesses.

Kelly Gallagher, Margaret McNichol and Paul Burns were each put under oath and questioned, first to establish the inquiry was appropriate and then to determine if it should continue, to add to the record the Ontario Court of Appeal will consider to determine the propriety of the verdict.

McNichol testified that juror number one, a female, made the comment to her directly while the group was passing by her in a hallway on their way into the jury room.

She said it happened the day before the panel received final instructions from Corkery on March 23, although the last time the jury sat was March 20.

Burns said he overheard a similar comment made by a female juror – he didn’t know which one – as he stood in the door of the jury room, about to leave the group on the morning of the same day they began deliberations and delivered the verdict four hours later.

Gallagher did not hear of any such comments and was not asked more than one question.

After the initial questioning, the lawyers had opposing views on whether or not a post-verdict inquiry should be held.

Pickens said her biggest concern is the common law rule of jury secrecy. She pointed out that Corkery was very clear in his instructions to the six-woman, six-man jury that they must not make their decision just to get it over with.

The prosecutor then asked the judge to consider the comment intrinsic to the process. “It’s an opinion expressed by a juror, and they are allowed to have those.”

Corkery disagreed, noting that the comment – at least the one made in the hallway – was not made during deliberations, making it extrinsic.

With that ruling, the judge declared the post-verdict inquiry underway, and McNichol and Burns were brought back for further questioning.

Asked more detailed questions, McNichol said the juror “basically said (she) didn’t want to say overnight” in a hotel and that she responded by saying that is part of the process, that jurors must be prepared to stay.

Burns could offer little more about what he overheard, seemingly on a different day that something was said to his counterpart. “I just caught that comment.”

Herscovitch then argued that the juror that made the comment to McNichol should be brought back for questioning as part of the inquiry, albeit with carefully selected questions as not to infringe on her right to secrecy.

That’s the only way to create an appropriate record for the appeal court, he argued. “I do think it’s necessary to hear from juror number one.”

Corkey made it immediately clear he was reluctant to do so without more fulsome submissions and further review of the law.

There are also limits on what could be achieved by recalling the juror, the judge said, noting she would only be able to speak about what they said in the hallway.

Pickens argued court had created a record of the circumstances and recalling the juror would be overstepping bounds. “It was in the four walls of secrecy. To go any further would be to go too far into jury deliberations.”

After the morning recess, during which Corkery further researched the matter, he said his position was similar to that of the Crown – there wasn’t enough evidence to warrant calling the juror back, and, questioning them could cross the line.

Herscovitch made further submissions, arguing that the partial account wouldn’t be admissible for the appeal court to consider it as fresh evidence.

In seeking to extend the inquiry, he argued that the court cannot answer if the comment was intrinsic or extrinsic, unless the juror is asked directly about what they meant.

If may have been a passing comment, or it could have had something to do with something more serious – like if the juror wanted to visit someone in the hospital that night, Herscovitch said. “The only way to know is to take it that one step further.”

Corkery re-asserted that the evidence provided too weak of a foundation to continue the inquiry, pointing out that the comment was made before deliberations. Saying such a thing could be expected of most jury members, he said. “Why should we be concerned about such a comment?”

Pickens found questions Herscovitch proposed to ask the juror troubling, agreeing with the judge’s previous assessment that furthering the inquiry would be sort of a “fishing expedition.”

Enough had been heard for the Court of Appeal to determine if the comment affected the propriety of the verdict, she said, asking the judge to imagine if courts held post-verdict inquiries for each question raised by a juror.

“It’s asking to open up the floodgates,” she said.

In his ruling, Corkery said he was satisfied the comment was not intrinsic to jurors’ deliberations, and that the process remained protected. He noted that the evidence heard from the court services officers was inconsistent.

Counsel agreed that the comment was not evidence that could assist an appeal and that, the Crown argued, is why further inquiry is not necessary, he said.

The defence disagreed, said Corkery, pointing out how Herscovitch argued that it is appropriate and necessary to ask juror number one questions in order to determine if the comment is evidence that can be considered or not.

The judge agreed the comment alone is not evidence that should be considered on appeal. Most jurors would have some aversion to being sequestered overnight, he added, concluding that further inquiry is not needed or appropriate.

NOTES: Sentencing submissions for Matthew Flannigan will be heard June 6 during a break in the jury selection process for another trial before Justice Chris Corkery scheduled to begin June 5 and last three weeks in Lindsay Superior Court of Justice .... Proceedings get underway at 9:30 a.m.

A graduate of Trent University in Peterborough could be in line to become the next premier of British Columbia.

John Horgan is the leader of the B.C. NDP party and is campaigning to oust B.C. Liberal Premier Christy Clark in an election that has just been called for May 9.

Horgan is a bachelor of arts graduate of Trent University. He met his wife, Ellie, while they were students at Trent.

Pre-election polls have shown the B.C. NDP leading the governing Liberals, with Horgan also enjoying an edge in leadership approval rating over Clark.

But the Liberals can’t be counted out. They have won four straight majority governments, sometimes against all odds, and are seeking a fifth on May 9.

As a teenager, Horgan was as far away from becoming a political leader in British Columbia as you could get. He was shooting pool at SuzyQ’s, smoking cigarettes and playing the role of troublemaker at the corner of Douglas and Yates streets in downtown Victoria.

“I was a 14-year-old, 15-year-old who’s not doing what he’s supposed to be doing,” Horgan said in a recent interview at the NDP’s downtown Vancouver office.

“I was hanging around with the wrong crowd,” the NDP leader said. “I wasn’t showing up at school. I was getting into trouble. I’m going to leave it at that.”

It was only when a high school basketball coach took him by the collar and told him to report to the gym that he turned things around and devoted himself to sports and academics.

“That’s really my deep dark secret. I could have gone one way and I ended up where I’m at,” Horgan said.

His father died from a brain aneurysm when he was 18 months old and Horgan fought bladder cancer a decade ago.

Horgan has two grown sons, Nate and Evan, and he says he never missed their hockey games or musical events.

Horgan was acclaimed NDP leader in 2014 after the party’s demoralizing 2013 election defeat. The NDP has been in Opposition since 2001.