The Yukon Court of Appeal heard allegations of racial bias Monday in the case of a man convicted of the attempted murders of an RCMP officer and a conservation officer.
Appellant lawyer Jason Tarnow argued that Christopher Cornell’s case should be overturned on three grounds.
Those include Crown prosecutor Keith Pakkari’s preemptory challenges and the composition of the jury allegedly showing racial bias.
Tarnow also argued that Yukon Supreme Court Justice Leigh Gower lost jurisdiction of Cornell’s trial and that inadmissible evidence about Cornell’s tattoo are grounds for an appeal.
Crown counsel Noel Sinclair, however, argues that the appeal should be dismissed on all three grounds. He asked that the court issue a statement vindicating Pakkari against allegations of racism.
Sinclair referred to the allegations as “entirely misguided and offensive.” He said their basis was “vague, superficial, and disturbingly speculative.”
In November 2014, Cornell was sentenced by the Yukon Supreme Court to 11 1/2 years in prison for the attempted murders of an RCMP officer and a conservation officer, along with other criminal charges.
Cornell was also designated as a dangerous offender and given a 10-year long-term supervision order that will commence upon his release.
He was charged following a robbery in Haines Junction and a high-speed chase that ended with the shooting of an RCMP officer in 2011.
On Monday, the court heard from David Tarnow, the defence counsel for Cornell.
He testified that early on in the jury selection process, Pakkari challenged four First Nations jurors.
At the time, Tarnow requested an adjournment to discuss his concerns in the judge’s chambers. Cornell was not present for the discussion.
Tarnow said he raised the issue of racial bias in chambers and recalls that Pakkari said he had no comment on the allegations.
“I inferred that he was relying on the fact that we as counsel don’t have to justify our challenges,” said Tarnow.
“I was surprised that he didn’t say anything.”
Pakkari, however, testified that he adamantly denied the accusations in chambers and was “absolutely not” using a racially motivated jury strategy.
In an affidavit filed with the court, he said his objective was to select jurors who were reasonable, had life experience, were typical of Yukon society and were content to be jurors.
His reasons for challenging the jurors, he said, was due to these objectives.
He noted that one of the jurors sought to be excused due to business obligations. Another worked out of town for the Carcross-Tagish First Nation, which may have posed geographical challenges.
He said another juror sought to be excused as she was a distant cousin of co-accused Jessica Johnson, who pleaded guilty to four of nine charges on the opening day of trial.
Pakkari said he dismissed this juror out of concern for potential bias. He could not recall why he challenged a fourth juror.
Jason Tarnow questioned why, after the chambers discussion, Pakkari challenged another First Nation juror but did not challenge a juror who sought to be excused due to family obligations.
Pakkari testified that her obligations did not begin until the trial would conclude, and he believed the juror was First Nations and wanted to take heed of David Tarnow’s concerns.
Sinclair noted that determining a person’s race or ethnicity is based on many factors, and cannot always be determined by appearance.
Citizens chosen for the Yukon jury selection process are based on health care records, so that the ethnic and racial population of the territory are represented for random selection, Sinclair added.
Jason Tarnow also argued that Justice Gower lost jurisdiction of the trial by having a discussion about jury selection off the record without the accused present.
“We are left with different accounts of what was said in that meeting,” he said.
But Sinclair argued that nothing substantive occurred during the in-chambers meeting and that the discussion was of a preliminary nature.
“Not everything that happens during trial is part of a trial,” he said.
Finally Tarnow said the case should be appealed based on a line of questioning near the end of cross-examination of Cornell about his tattoo, which reads “f--- the police”.
In his affidavit, Pakkari noted that Cornell brought up the tattoo and claimed that he was surprised he did so.
But Tarnow argued that this line of questioning was “deliberate and strategic,” and meant to impress upon the jury that a person with such a tattoo would likely commit the crimes that Cornell was accused of.
He said the Crown ought to have known of the inadmissibility of this evidence.
He also said the jury laughed out loud when they heard about the tattoo.
“It was so prejudicial and outrageous that the jury found it to be comical,” he said.
During trial, David Tarnow filed a mistrial application over evidence about the tattoo.
Justice Gower dismissed the application but made a mid-trial instruction to the jury to disregard this evidence, finding it inadmissible.
Jason Tarnow argued this did not address the damage caused by hearing the evidence.
Sinclair noted that in his mid-trial instruction, Justice Gower explained to the jury to dismiss the evidence, as some people get tattoos and then regret them.
“That hit the nail on the head,” said Sinclair.
He also said that mistrials are an extraordinary remedy in only the clearest of cases, which does not apply in this case.
Chief Justice Robert Bauman, Justice Ian Donald and Justice Bonnie Tulloch presided over Monday’s appeal. They have reserved decision in the case.