Allegations that a Crown prosecutor tried to keep First Nation people off a jury are false and should be dismissed, the Yukon Court of Appeal heard May 15.
The court was hearing the appeal of Chris Cornell, convicted of the attempted murder of an RCMP constable and a conservation officer. A jury trial convicted Cornell of eight charges included attempted murder in October 2013.
Cornell’s lawyer, Jason Tarnow, is asking the court to overturn the conviction on the grounds the Crown prosecutor at the time discriminated against First Nation people from being on the jury.
There is simply no evidence to support that, Crown prosecutor Noel Sinclair told the court.
Tarnow accused Keith Parkkari, one of the prosecutors at Cornell’s trial, of misusing his peremptory challenges.
Crown and defence are each given 12 peremptory challenges during the jury selection process, which basically allow them to dismiss a potential juror without having to justify it.
While courts have in the past reviewed the use of peremptory challenges, the defence in this case hasn’t produced enough evidence to reach the threshold for a review, Sinclair said.
Still, the Public Prosecution Service of Canada decided to have Parkkari answer those allegations.
“(Those allegations) are so unsavoury we chose to address them head-on even though we don’t have to,” Sinclair said. “We want the public to have confidence in the jury (process) and that Cornell received a fair trial.”
He asked the court to go beyond dismissing the allegations and to issue a statement that would “vindicate Parkkari from these careless and unsubstantiated pleadings.”
Parkkari, Christina Lavidas, and trial lawyer David Tarnow all took the stand. Lavidas worked with Parkkari and David Tarnow represented Cornell during the trial.
After Parkkari dismissed three jurors, David Tarnow testified he asked for an adjournment and met with judge Leigh Gower and Parkkari in an improvised judges’ chambers.
He told Gower he was concerned Parkkari was using his challenges to dismiss First Nation people from the jury. Gower told them to proceed.
During his testimony Parkkari denied having any racial bias against First Nation people or even that he had a strategy to exclude them from the jury.
Parkkari told the Court of Appeal he wanted reasonable jurors who had life experience and were “typical members of society.”
He also wanted them to be willing to be jurors. One he sought to exclude had previously asked the judge not to be on the jury, Parkkari said.
Jason Tarnow, who is representing Cornell during the appeal, also took issue with the fact that Gower didn’t include in the record any mention of the allegations his father had raised and that the accused wasn’t present during that conversation.
“The composition of a jury is of vital interest to the accused,” he said.
But David Tarnow informed the accused of the discussion and no formal decision or application took place during that meeting, Sinclair said.
Jason Tarnow’s last ground to challenge the conviction was about Parkkari’s line of questioning during the very end of the trial.
Parkkari was cross-examining Cornell when, Jason Tarnow argued, he led him to talk about his tattoo, which read “fuck the police,” to make jurors believe Cornell was the kind of person more inclined to hurt a police officer.
David Tarnow at the time asked for a mistrial but that request was denied.
Despite the judge telling the jury members not to take it into account, Jason Tarnow argued the effect was too grave to be discounted.
That detail was Parkkari’s “ace up his sleeve,” Jason Tarnow said. When the jury heard about the tattoo, some of them found it “comical,” he said.
Parkkari himself conceded that the line of questioning was inappropriate, he said.
But Parkkari simply got sidetracked, Sinclair said, as he was planning to ask whether Cornell still held similar beliefs against the police as when he got the tattoo.
Ultimately Gower was in the best position to evaluate what impact the inadmissible evidence had on the jury, Sinclair said. He told the panel of judges the Supreme Court of Canada had ruled the Court of Appeal’s role wasn’t to “routinely second-guess” trial judges’ decisions.
Chief justice James Bauman, Justice Ian Donald and Justice Bonnie Tulloch heard the case. They reserved their decision.
Contact Pierre Chauvin at pierre.chauvin@yukon-news.com