New trial ordered in manslaughter case after rare Crown concession

The Ontario Court of Appeal has overturned manslaughter convictions for two co-appellants following a rare concession by the Crown.

The decision, released Sept. 25, overturns the sentences imposed against George Cooke and his nephew Matthew Cooke in a 2015 jury trial presided over by Justice Jane Milanetti and orders a new trial. Christopher Hicks, a partner with Hicks Adams LLP, represented George Cooke at trial.

Jessica Zita, associate with Hicks Adams and junior counsel on George Cooke’s appeal, says the concession and the ultimate decision came in response to their factum, as Matthew Cooke’s counsel argued their appeal on different grounds, but the co-appellants both suffered from the same jury charge and, therefore, both had their convictions overturned.

The Cookes were accused of manslaughter in the 2011 death of Jessie Kovacs, a 55-year-old Hamilton man who died when the men broke into his apartment searching for drugs. At trial, there was competing expert testimony over how Kovacs died, and while the Crown and counsel for the accused may vary on that point, both agreed that the jury wasn’t properly instructed.

The factum alleged the trial judge erred in several ways when it came to instructing the jury, including: failing to summarize the evidence that was relevant to the position of the accused, thereby failing to put the defence position fully and fairly to the jury failing to draft an organized jury charge and properly assist the jury; failing to assist the jury in clearly understanding the legal principles governing the factual issues and how the evidence related to those issues; and failing to leave the jury with a clear understanding of the factual issues of the case.

The Cooke appeal decision reads that the presiding judges — Eleanore Cronk, Russell Juriansz and David Paciocco — were satisfied, “as Crown counsel responsibly concedes, that the jury charge in this case on the critical counts of manslaughter is insufficient to meet the functional requirements for an adequate jury charge.”

“In particular, as Crown counsel acknowledges, the charge fails to adequately relate the evidence to the key issues in the case and the parties’ positions on those issues.”

Zita says it was presumed the appeal court would decide as they did “because a Crown concession on something like a manslaughter where there’s a body involved is so rare.”

Richard Litkowski, also an associate at Hicks Adams who served as senior counsel on the appeal, has been an appeals lawyer for many years and says he has never seen this happen in his career.

Zita says the Crown acted professionally, as a concession “is obviously something they are not used to doing, but a lot of credit is owed to them because they handled themselves very honourably in this situation.”

The Crown would have had a hard time defending the allegations against the trial judge, however, Zita notes, because the Cooke decision is “coming off the heels of another court of appeal decision,” R. v. Newton.

In Newton, it was the same trial judge and the conviction was also overturned in that case because of the trial judge’s jury direction.

“That very recent decision strengthened our appeals ground,” says Zita, although she notes Newton wasn’t out at the time they filed their factum and, therefore, wasn’t part of their appeal strategy — it was released in June while the factum was sent in in March.

“So quickly following after that court of appeal decision, that pronouncement, then this case with the same judge with the same issues — I think the Crown probably saw that it would be a difficult argument to make,” says Zita.

Newton was also referenced in the Cooke appeal decision, with the decision noting that the jury charge was insufficient to meet the functional requirements, “as articulated in R. v. Newton, 2017 ONCA 496 and related cases.”

Next steps are in the hands of the trial lawyers and the Hamilton court system. There has so far been no date set for the retrial.