New trial for man freed by a cough

OTTAWA — A Toronto man mistakenly acquitted of attempted murder after a jury foreman stumbled and coughed in pronouncing the verdict will get a new trial.

A new trial is needed to ensure public trust in the justice system, the Supreme Court of Canada ruled yesterday.

Howard Burke, now 42, kissed the ground after being freed at the end of his September, 1997, trial.

But his freedom was short-lived once a court officer learned from the jury foreman the jurors intended the verdict to be "guilty as charged."

The jury foreman had cleared his throat an instant before pronouncing "guilty." But the trial judge, Ted Minden thought the foreman said "not guilty" and told Burke he was free to go.

The mix-up led Minden, to recall the jury and to conduct an unusual inquiry of the 12 jurors.

Burke is still in jail serving a 12 1/2- year sentence for shooting Ian Francis five times in a Vaughan auto repair shop in October, 1996, over a drug deal debt.

In a 5-4 decision, the country's top court said the "clumsy sequence of events" that led to Burke's conviction raise legitimate concerns about whether the final verdict was fair or tainted, and ruled a mistrial should have been declared.

The case is only the second of its kind in Canada, and led to changes in the way Ontario courts record verdicts, which are now written.

The Ontario Court of Appeal upheld the conviction, ruling it was merely a clerical error in recording the verdict, which was corrected by the judge.

But yesterday, the top court said the power of judges to correct verdict errors after a jury has been discharged is very narrow.

Instead, a judge must inquire not whether there was "actual bias" but whether there is any reasonable likelihood, possibility or danger of bias —— a determination that will often depend on how much time has lapsed, whether the jury has left the box, or courthouse.

On behalf of Justices Frank Iacobucci, Ian Binnie, and Louis LeBel, Justice John Major said the order for a new trial "will hopefully assuage these concerns and go towards restoring public confidence" in the jury system.

Major wrote there's no doubt "the public would wonder what had happened to the administration of justice in this case" and said reasonable people might conclude a jury could potentially have been biased by the time it was reconvened.

Justice Louise Arbour agreed with the final result, but in a concurring opinion, she said the jurisdiction of judges in such cases is even broader to correct errors.

Four other justices, Claire L'Heureux-Dubé, Charles Gonthier, Michel Bastarache and Chief Justice Beverley McLachlin dissented.

Yesterday, Burke was "delighted" to hear about the ruling and plans to seek bail pending a decision on holding a new trial, said his appeal lawyer David Tanovich.

A Toronto man mistakenly acquitted of attempted murder after a jury foreman stumbled and coughed in pronouncing the verdict will get a new trial.

This for real, isn't it?..."Oh Canada...."

Crimenies!

FMCDH

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