The OCA said the directive was wrong even if it flowed logically from another sound jury rule
A trial judge erred when he instructed a jury to conclude that a criminal defendant had the mental state for murder, but the judge’s mistake did not ultimately affect the outcome of the trial, the Ontario Court of Appeal ruled on Monday.
Writing that the issues on appeal “require close attention to the boundary between the powers of the judge and the jury,” the OCA added that the trial judge did not have the power to tell the jury that they must find the killing was intentional.
Concerning the first-degree and second-degree murder charges that the jury was considering, “the determination of whether the [defendant] had the state of mind for murder was up to the jury,” the OCA said.
Justice Benjamin Zarnett wrote the decision for the court. Justices Steve Coroza and Patrick Monahan concurred.
Angela Skorulski was found dead in her Oakville apartment in 2017. On the last day anyone had seen or heard from her, Skorulski met James Scordino, her co-defendant in a lawsuit, at her apartment. Video evidence later showed Scordino leaving the building alone through a back stairwell with his hood on.
Skorulski and Scordino were in the midst of defending a lawsuit brought by the University of Toronto, which alleged they were part of a scheme to falsely invoice the school for elevator repairs. Skorulski wanted Scordino to take full responsibility for the scheme and wrote a statement to this effect for him to sign. Skorulski told her friend and her lawyer that Scordino had agreed to take full responsibility, but Scordino told his girlfriend, in contrast, that he was not “willing to take the fall” for the claim.
After Skorulski’s body was discovered, police searched Scordino’s workspace and home. They found clothing that matched what he was wearing on the night he visited Skorulski, which bore traces of her blood and gunshot residue. Police found additional evidence that tied Scordino to the killing, including a gun in the ceiling of his workspace and ammunition that could have been used with the gun.
A jury found Scordino guilty of first-degree murder, but he appealed the finding on three grounds. Scordino argued that the trial judge mistakenly barred the jury from considering manslaughter as a possible offence and gave the jury flawed instructions on how to use evidence about Scordino’s conduct after Skorulski’s death. Scordino also argued that the trial judge erred when he instructed the jury that if they believed Scordino was the shooter, they also had to find that he had the state of mind required for murder.
In its decision, the OCA dismissed the first two arguments. Regarding the manslaughter claim, the OCA noted that “the trial judge’s authority not to instruct on an included offence is exercised for the purpose of focussing the jury’s attention ‘on the live issues actually raised by the evidence.’” The court added that a judge’s “power to decide not to leave an included offence with the jury seeks to reduce ‘the risks of unreasonable verdicts, juror confusion, or improper compromise.’”
Because the trial judge determined that Skorulski’s death could not have been the result of an accident, there was no realistic possibility that Scordino could be convicted of manslaughter instead of murder, the court said. The judge, therefore, did not make a mistake when he took manslaughter off the table for the jury.
The OCA also tossed out Scordino’s argument that the judge gave the jury flawed instructions on how to assess his conduct after Skorulski’s death. According to Scordino, the judge should have limited the jury’s ability to use certain evidence – like the fact that he didn’t attend Skorulski’s funeral and deleted his text messages with her – to determine his culpability.
However, the OCA found that the trial judge “appropriately cautioned the jury” against the risks typically associated with assessing “after-the-fact” conduct. The judge “cautioned them not to jump too quickly from the evidence to an inference of guilt,” the OCA said. “He instructed them to consider alternative explanations, to use the evidence only if they rejected any such explanations, and in all events to be cautious in using this evidence.”
The OCA found that Scordino’s third argument had merit, determining that the trial judge erred when he directed the jury to answer “yes” to the question of whether Scordino had the required state of mind for murder. That conclusion “may have flowed logically from the reasons that the trial judge gave for not instructing on manslaughter,” the OCA said. However, “the sole power to decide whether that essential element was proven on the charge of murder belonged to the jury.”
However, the appellate court accepted the Crown’s argument that this error was harmless and did not impact the jury’s verdict.
The Ministry of the Attorney General declined to comment. Counsel for Scordino did not immediately respond to a request for comment.
