Hamilton judge blames prosecutor for murder mistrial

A prosecutor who compared an accused murderer to an “animal” and mocked his defence strategy in her opening address has been blamed for tainting a jury in Hamilton, Ont., and forcing a judge to declare a mistrial even before the first witness was called.

Assistant Crown Attorney Kim Rogers went so far as to compare the murder case against Haiden Suarez-Noa to the 1984 movie Impulse, in which rural townsfolk behave in bizarrely erotic ways after toxic waste leaks into the water, indulging “their base or most feral instincts,” as she put it.

“Imagine a society in which anyone could act upon his first instincts,” Rogers told the jury after recommending the film. “That ladies and gentlemen, is what this trial is about: the difference between reasonable human beings and animals.”

The remarks, about the stab- bing death of Suarez-Noa’s common-law partner, Tania Cowell, were so inflammatory the trial was over by lunch, and is now expected to resume with a new jury in November.

The Crown’s opening address can, by law, offer guidance for the trial ahead, but it is “not the appropriate forum for argument, invective, or opinion,” according to the newly published reasons of Judge Robert B. Reid, about last Wednesday’s mistrial.

It was not just the movie reference or the “animal” comment. The entire address was a legal mess, the judge found, full of “pre-emptive argument” and discussion of, for example, personality traits that could make someone to appear calm while concealing “deep uncontrolled rage.”

Reid said he had no choice but to end the trial — the remedy of last resort — because of the Crown’s “rhetorical overzealousness, personal opinion, argument, negation of the accused’s right to silence and implied reversal of the onus of proof.”

“Although the reference was not direct, in my view, there can be no doubt that counsel was suggesting to the jury that the accused had behaved like an animal rather than a human being in committing the acts which, as she advised the jury, had been admitted,” Reid wrote. “That characterization of the accused was both highly improper and was of such a nature that it could not be erased from the minds of the jurors even with a significant correcting instruction. The fairness of the trial process was irremediably compromised.”

Tania Cowell was 36 when she was stabbed to death in March, 2013, in her apartment in Stoney Creek, part of Hamilton, Ont. She was on maternity leave from a job as a personal support worker for disabled people, helping them live independently.

Her common-law partner, Suarez-Noa, then aged 35, turned himself in to police in Guelph, Ont., a few hours after the killing and has been in cus-

Highly inappropriate for Crown counsel to advise the jury of the defence position

tody since. He also handed over their five-month-old son, Bailun, who was unharmed, and is now in the care of Cowell’s family.

All crimes require proof of both a guilty act and a guilty mind. Suarez-Noa admitted the act to police, but pleaded not guilty to second-degree murder. He was expected to argue the partial defence of provocation.

This controversial tactic, which can reduce apparent murder to manslaughter if it happens “in the heat of passion caused by sudden provocation,” is often pleaded and usually fails. A few months after the murder, for example, the Supreme Court of Canada made it even more difficult, saying it “cannot spring from bare, unsupported assertions by the accused.”

The prosecutor told the jury that, to support this strategy, Suarez-Noa would testify, and the jury should consider whether his version squares with the evidence. This, in effect, reversed the burden of proof that properly rests with the Crown.

“She has no place speaking for the defence,” said defence lawyer Charn Gill, who successfully argued Reid should declare the mistrial.

“It is highly inappropriate for Crown counsel to advise the jury of the defence position without a prior agreement, and particularly implying to the jury that the accused will testify,” Reid wrote. “Every accused obviously has an unequivocal right to maintain silence.”

“Although the Crown is entitled to act as a strong advocate within the adversarial process, it cannot adopt a purely adversarial role towards the defence,” Reid cautioned, and he cited a precedent from 1954, in which the Supreme Court said: “It cannot be overemphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before the jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime.”