A Yukon man convicted of robbery and the attempted murder of a Haines Junction RCMP officer in 2013 did not have his right to a fair trial compromised because, among other things, the jury discovered he had a tattoo that reads “fuck the police,” the Court of Appeal ruled Aug. 3.
A Whitehorse jury convicted Chris Cornell of eight criminal charges in October 2013 after, according to court documents, Cornell and an accomplice robbed Madley’s General Store in Haines Junction in 2011.
During the high-speed chase that followed, Cornell fired a bullet out the back of his getaway vehicle, striking the windshield and dashboard of the pursuing police truck and seriously injuring RCMP Cpl. Kim MacKeller with shrapnel. Cornell was sentenced to 11 and a half years in jail and a 10-year probation.
Cornell and his lawyer, David Tarnow, filed an appeal, accusing the Crown of purposely excluding Indigenous people from the jury. They also claimed the trial was invalid because Cornell had not been present for an informal meeting between the Crown, defence and judge, and claiming that the jury was prejudiced after learning, during the Crown’s cross-examination of Cornell, that he had a “fuck the police” tattoo.
However, in a written reasoning filed Thursday, Justice Ian Donald dismissed the appeal, stating Cornell and Tarnow did not have proof for any of their claims. The dismissal was supported by Chief Justice Robert Bauman and Justice Bonnie Tulloch.
In a point-by-point breakdown, Donald outlined the lack of evidence for each of Tarnow and Cornell’s points, starting with the alleged exclusion of potential Indigenous jurors.
“It must be said that there is no credible evidence that the jury selection was unfair or produced an unrepresentative jury,” Donald wrote, noting that Tarnow and the junior Crown counsel for the trial both said they didn’t actually know who on the panel was Indigenous.
“Unless that is known, it is impossible to establish that the jury was unfairly constituted as to race. The point is that there is no basis for the premise that the appellant had an unfair jury,” Donald wrote, adding that Tarnow “offers impressions and suppositions without any concrete facts” and “failed to produce any cogent evidence of improper prosecutorial conduct.”
The meeting Cornell wasn’t present for was an in-chambers meeting where Tarnow complained that the Crown was challenging all potential jurors who were Indigenous. The judge listened to the complaint but did not make a ruling or give direction, nor did Tarnow “request any remedy,” and jury selection resumed after about 10 minutes.
The meeting was not a crucial part of the trial, Donald wrote, a view supported by the “very informal way in which Mr. Tarnow approached the meeting,” neither arranging for his client nor a court reporter to be present.
“Mr. Tarnow was not looking for a remedy; he was… venting his feelings and drawing attention to what could emerge as a pattern of conduct,” the ruling said.
Finally, Donald addressed the claim that the jury was biased after learning of Cornell’s tattoo, which came up during the Crown’s cross-examination of Cornell during which he was asked about his feelings towards the police.
“You don’t dislike the police in any way?” the Crown asked.
“I don’t know,” Cornell replied.
“Isn’t a more accurate sentiment about how you feel about the police is something along the lines of ‘fuck the police?’” the Crown responded.
“Why, because I have a tattoo that says ‘fuck the police?’” Cornell countered.
“I don’t know. Do you?” the Crown asked.
“Yes,” Cornell responded.
The defence moved for a mistrial, but the trial judge dismissed the application, instead telling the jury twice that they must “disregard (the tattoo) evidence entirely and not consider it further.”
The trial judge found that knowledge of Cornell’s tattoo was not “a fatal blow to the fairness of this trial,” which Donald agreed with.
“It cannot be said that no jury could put the evidence out of their minds after hearing the judge tell them twice to ignore it in the clearest of language.”
Contact Jackie Hong at firstname.lastname@example.org