Murder appeal raises question: Can judges overstep authority?

Law360 Canada (January 16, 2025, 1:37 PM EST) --

John L. Hill

It is trite to say that the judge is the trier of law, and the jury is the trier of fact. Can judges in criminal jury cases overstep their authority by refusing to allow a jury to consider a lesser and included offence as part of the jury’s deliberation? This was the first argument raised by Toronto criminal lawyers Nathan Gorham and Breana Vanderbeek in the appeal of James Scordino’s conviction for first-degree murder. The Ontario Court of Appeal issued its answer to the question on Jan. 13, 2025, in R. v. Scordino, 2025 ONCA 12.

Angela Skorulski’s body was discovered in her Oakville apartment on March 8, 2017. She had been missing for three weeks. It was found that she had been shot multiple times, with the final shot administered with the gun pressed directly to the back of her head. There were no witnesses to the killing. However, a surveillance camera taped James Scordino approaching the apartment building and meeting with Skorulski on Feb. 13, 2017. The University of Toronto sued Skorulski and Scordino for falsely invoicing elevator repairs. Evidence showed the two had been arguing about which of them should “take the fall” and pay the eventual judgment. A search warrant executed at Scordino’s workplace uncovered a bag with Scordino’s fingerprints, clothing matching what he was wearing on Feb. 13, Skorulski’s blood stains, and gunshot residue.

Scordino did not testify at trial.

After the trial, the judge invited submissions on potential verdicts. Defence counsel argued that manslaughter should be considered a possible verdict. The trial judge refused to charge the jury with manslaughter, claiming there was no air of reality that would allow such a conclusion.

The Court of Appeal upheld the trial judge’s decision to refuse to allow the jury to consider a manslaughter verdict. It held that the decision on how to instruct a jury is a question to be decided by the trial judge. The trial judge must ensure that the jury focuses on live issues the evidence raises (R. v. Ronald, 2019 ONCA 971).

The Court of Appeal addressed the trial judge’s power succinctly: “The trial judge’s power not to instruct the jury on an included offence, and the applicable standard for exercising the power, must be kept separate, analytically, from the issue of what directions may be given to the jury on the main charge and on any included offence that is being left with the jury. With respect to those offences, it is a basic principle that although the trial judge can direct an acquittal, only the jury can decide that the non-admitted essential elements of the offence(s) have been proven, and only the jury can decide to convict, regardless of the judge’s views about what results are reasonable, realistic, or possible: R. v. Gunning, 2005 SCC 27, [2005] 1 S.C.R. 627, at paras. 27-31.”

It is the jury’s exclusive domain to determine a verdict except in cases where there is no evidence upon which a properly instructed jury could reasonably convict. However, an accused has a s. 11(f) Charter right to trial by jury. A judge cannot direct a jury to convict or find that the Crown has failed to prove an essential element of the offence, even if the judge would find such a conclusion perverse (R. v. Krieger, 2006 SCC 47).

In this case, Skorulski’s shooting could not have been accidental or unintentional. Following the Ronald case, there was no air of reality to accidental killing. The defence argument that shots were fired in the course of a struggle is speculative and inconsistent with the pathologist’s report that the final shot was taken with the gun pressed directly to the back of the victim’s head. The judge was right to refuse to charge the jury on manslaughter.

The trial judge did err, however, in his instructions on determining if the accused had the proper state of mind required to commit murder. The jury has the sole power to decide if an essential element is proven. The trial judge can offer an opinion on how the jury should address the issue, but the trial judge cannot direct their finding.

Nonetheless, this is a case where the curative proviso should operate. It is a case, as suggested in R. v. Khan, 2001 SCC 86, where any legal error was harmless, or the evidence was so overwhelming that the trier of fact would inevitably convict.

This case is distinguishable from Krieger, where the trial judge completely usurped the jury’s function. Here, the judge did not direct a verdict. He pointed out various paths on which a verdict could be derived. The jury decided that Scordino caused Skorulski’s death. It then found the killing was both planned and deliberate. Had the jury found Scordino did not kill the victim, it was free to enter a not guilty verdict. If it had not believed the death was planned and deliberate, the jury could have concluded a conviction for second-degree murder was appropriate. It decided first-degree murder had been committed. Accordingly, the jury’s guilty verdict was allowed to stand.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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