Judge apologizes to families after trial via Zoom
Loved ones felt ‘shut out’ of process in which man convicted of killing two outside nightclub
A Toronto judge took the unusual step during a sentencing hearing Thursday of apologizing to the victims’ families for the “loss of human connection” during an “imperfect” murder trial conducted entirely over video conference due to the pandemic.
Hearing the case via Zoom in front of a judge, not a jury, was the “only available option,” and regrettably, “much was sacrificed in the process,” Superior Court Justice Peter Bawden said Thursday.
Bawden was responding to the anger and emotion expressed by relatives of Tyler McLean, 25, and Zemarai Khan Mohammed, 26, both shot to death outside downtown Toronto’s Rebel nightclub on Oct. 1, 2017.
The trial of the two men accused in the crime began in front of a jury in early 2020 at the downtown Toronto Superior Courthouse until it got derailed by COVID-19, which forced court shutdowns across the country.
While thousands of cases moved toward remote audio and video hearings,
the main exception has been criminal jury trials, which were suspended for months in Ontario and elsewhere because of the complexities and logistics involved.
While the Criminal Code dictates that murder charges should be held in front of juries, exceptions can be made. And so earlier this year, with a crushing caseload of jury trials piling up, the participants in this case agreed to proceed using the Zoom platform.
A trial was held earlier this year and one of the accused was convicted in July. Last week, during sentencing submissions, Bawden heard 17 family members read victim impact statements that captured their grief, hurt, rage and frustration at being “shut out of this trial.” Some of the anger was directed at the way it unfolded virtually.
Addressing them Thursday over Zoom — although their faces didn’t appear on the screen — Bawden said he felt “great sympathy” that family members felt ignored during the criminal trial process, something that “is not our tradition.”
On Thursday, he sentenced Tanade Mohamed to life with no parole eligibility for 18 years after convicting him in July of the second-degree murder of Mohammed. He added a 15year sentence, to be served concurrently, to Mohamed’s prison tab for McLean’s death, which he ruled was manslaughter.
In his reasons for judgment, in which he acquitted the getaway driver, Bawden described the killings as “incomprehensible.” The deceased, who were unarmed, and the accused were strangers before violence erupted after only “a modest disagreement and angry remarks,” following an “unremarkable” night inside the club.
Although rare for a jury to hear evidence from a murder victim’s family during a trial — even in regular times — “that does not mean the family is unknown to the jury, who see the families of both deceased and accused as they file into court each day, often seated in the front row of the court,” Bawden said.
Family members add “important solemnity to the proceedings,” and provide a constant reminder to everyone in court about the human element, much of that “lost in this Zoom proceeding.”
The judge thanked Mohammed’s brother, Jamal Khan, for bringing his brother “back to life” by holding up his picture, pointing to it, and saying emphatically “this is my brother.” During the trial, the only photo shown of Mohammed — a former interpreter in Afghanistan with the Canadian military — was of his body lying in the nightclub parking lot, stripping him of his humanity, said Bawden.
“I felt good that the judge realized and acknowledged his heroism, and how brave and determined he was to help his countryman and his people,” Khan told the Star after the sentencing hearing had ended. He had nothing bad to say about his experience with Zoom justice.
Bawden also said he deeply regretted and apologized for the “unnecessary pain” he caused McLean’s mother, Paris Vassel, by referring to one of the defendants by the short form of his name. She told court last week that each time he did it, “it ripped my stomach — it was such an affront that I will never recover.”
“I do not believe I would have made the same mistake in an open courtroom. If I used a term in open court that caused such pain … I would have seen look of shock and dismay on her face and it would not have happened again,” Bawden said.
Vassel told the Star Thursday she was feeling too raw to make a comment right now, but wrote in a text message that efforts to raise money for an antigun violence charity called The Tyler Effect will resume when it is safe from COVID-19 to do so.
Bawden concluded his remarks to the families saying he hoped they took some consolation that the virtual hearing allowed them to hear and see the same evidence he heard, even if they don’t agree with his conclusions.
Hugh McLean, Tyler’s father, a lawyer now living in Ireland, not only doesn’t agree with the judge’s verdicts, he told the Star on Thursday that the entire “COVID trial” was a sham.
“You don’t see reactions of people, cross-examination is not quite the same as it would be in the open court. If someone is lying in a Zoom trial, they can say ‘my phone went off,’ ” McLean said. The trial could have been held in person, he argued.
“The U.K. has had full trials — they’ve had murder trials involving murder victims during COVID and the trials have already been completed, so there’s a serious problem with the Canadian justice system.”
McLean is also upset that Mohamed was convicted only of manslaughter in the death of his son, saying there was clear evidence of murder. Nor is he satisfied with the 15-year sentence, to be served concurrently, which he called a joke.
At the end of the sentencing hearing, Bawden told Mohamed he hoped he made good on a promise to become a better person. Wearing a blue protective covering and sitting in a jailhouse video room, Mohamed raised his blue gloved hand and gave the judge a thumbs up.