A Toronto judge took the unusual step during a sentencing hearing Thursday to apologize to the families of the victims for the “loss of human connection” during an “imperfect” homicide full-fledged video conference due to the pandemic.
Hearing the case via zoom in front of a judge, not a jury, was the “only option available,” and unfortunately “a lot was sacrificed in the process,” Supreme Court Judge Peter Bawden said Thursday.
Bawden responded to the anger and sentiment expressed by relatives of Tyler McLean, 25, and Zemarai Khan Mohammed, 26, both shot dead outside downtown Toronto’s Rebel nightclub on October 1, 2017.
The trial of the two men charged with the crime began before a jury in early 2020 at the Toronto Superior Courthouse in downtown, until it was derailed by COVID-19, forcing widespread court stops across the country.
While thousands of cases are moving toward remote audio and video proceedings, the main exception has been criminal jury trials, which were suspended for several months in Ontario and elsewhere due to complexity and logistics.
Although the Penal Code prescribes that murder charges be brought before juries, exceptions may be made. And so earlier in the year, with a crushing case load of jury trials piling up, the participants in this case agreed to continue using the Zoom platform.
A trial was held earlier this year and one of the accused was convicted in July. Last week, during sentencing, Bawden heard 17 family members read victim influences that captured their grief, hurt, rage and frustration at being “shut out of this trial.” Some of the anger was directed at the way it unfolded virtually.
Bawden spoke to them Thursday over Zoom – though their faces did not appear on screen – Bawden said he felt “great sympathy” as family members felt ignored during the criminal case, something that “is not our tradition.”
On Thursday, he sentenced Tanade Mohamed to life without probation for 18 years after convicting him in July of the second-degree murder of Mohammed. He added a 15-year sentence to be handed down at the same time to Mohamed’s prison banner for McLean’s death, which he believed was manslaughter.
In his sentencing, in which he acquitted the getaway driver, Bawden described the killings as “incomprehensible.” Deceased who were unarmed and the accused were strangers before the violence broke out after only “a modest disagreement and angry remarks” after an “imperceptible” night inside the club.
While it’s rare for a jury to hear evidence from a murder victim’s family during a trial – even in ordinary times – it does not mean that the family is unknown to the jury, which sees the families of both the deceased and the accused when they anchor for each day. often sitting in the front row of the court, ”Bawden said.
Family members add “important solemnity to the procedure” and provide a constant reminder to everyone in court about the human element, much of it “lost in this Zoom procedure.”
The judge thanked Mohammed’s brother, Jamal Khan, for bringing his brother “back to life” by holding up his picture, pointing to it and emphatically saying “this is my brother.” During the trial, the only photo shown by Mohammed – a former interpreter in Afghanistan with the Canadian military – of his body lying in the nightclub’s parking lot deprived him of his humanity, Bawden said.
“I felt good that the judge realized and acknowledged his heroism and how brave and determined he was to help his countryman and his people,” Khan told Star after the trial was over. He had nothing bad to say about his experience with Zoom Justice.
Bawden also said he deeply regretted and apologized for the “unnecessary pain” he caused McLean’s mother, Paris Vassel, by referring to one of the defendants by the short form of his name. She told the court last week that every time he did, “it tore me in the stomach – it was such an insult that I will never recover.”
“I do not think I would have made the same mistake in an open courtroom. If I had used an expression in open court that caused such pain … I would have seen a shock and dismay on her face and it would not have happened again, ”Bawden said.
Vassel told Star Thursday that she felt too raw to comment right now, but wrote in a text message that efforts to raise money for a charity against weapons called The Tyler Effect are resumed when it is safe from COVID-19 to do that.
Bawden concluded his remarks to the families, saying he hoped they took comfort in the fact that the virtual hearing allowed them to hear and see the same evidence he heard, even though they do not agree with his conclusions.
Hugh McLean, Tyler’s father, a lawyer now living in Ireland, not only does not agree with the judge’s verdicts, he told the star on Thursday that the whole “COVID trial” was a scam.
“You do not see reactions from people, cross-examination is not quite the same as it would be in the open court. If someone is in a Zoom trial period, they can say ‘My phone went off,’ McLean said. The trial could have been held in person, he argued.
“The UK has had full trials – they have had assassination attempts with murder victims under COVID, and the trials have already been completed, so there is a serious problem with the Canadian justice system.”
McLean is also upset that Mohamed was only convicted of manslaughter in his son’s death and said there were clear signs of homicide. He is also not happy with the 15-year sentence that is to serve time at the same time, which he called a joke.
At the conclusion of the sentencing, Bawden told Mohamed that he hoped he kept a promise to become a better human being. Wearing a blue protective garment and sitting in a prison room video room, Mohamed raised his blue gloved hand and gave the judge his thumb up.