Tigralia

Crown wins rare chance to appeal acquittal in 2001 stabbing case at downtown Toronto nightclub
Aug 03, 2007 04:30 AM
Simona Siad
Staff Reporter

The Ontario Court of Appeal ordered a new trial for Jeffrey Tuck yesterday, an east Toronto man acquitted in 2005 of stabbing and murdering student Salim Jabaji during a rave at a nightclub.

Six years ago, in 2001, Jabaji, a 20-year-old engineering student at Hamilton's Mohawk College, was found bleeding to death from two knife wounds – one in the heart – as rave partiers danced the night away at Toronto's The Docks nightclub.

Tuck, 24, was charged with second-degree murder in the case, and admitted to stabbing Jabaji, but insisted it was in self-defence after Jabaji attacked him with a knife.

The Crown's appeal last week argued that the trial was rendered unfair because the trial judge allowed evidence that police had found 39 ecstasy pills sewn into the deceased's underwear. The Crown argued the evidence was not relevant, but since it had been allowed, so should Tuck's previous drug-related charges.

The Crown also argued that since witnesses in the trial testified that Jabaji had a temper and would be the type to "throw the first punch," the Crown should have been allowed to respond with evidence of Tuck's propensity for violence.

And finally, the Crown said the trial judge had failed to correct the defence lawyer after he "impermissibly" used the evidence about the 39 pills in his closing address.

In a case of acquittal for murder it is uncommon for the Crown to appeal, said Paul Bernstein, a criminal lawyer and former adjunct professor at Osgoode Hall Law School.

He said that to secure a new trial the Crown had to not only establish that there was an error of law but show that the error was significant enough that a conviction would most likely have been obtained but for the mistake.

"The system is set up to avoid wrongful convictions, so you don't need to prove your innocence," he said.

The Ontario Court of Appeal ruled in the Crown's favour yesterday. The court's reasons state that the "cumulative effect of the admission of the 39 pills evidence, the exclusion of evidence of the respondent's propensity for violence, defence counsel's impermissible use of the evidence and the trial judge's failure to take corrective action, left the jury with a distorted factual picture on the key issue."

Jabaji's parents, who drove from their home in Niagara Falls to attend all of the 200 court hearings in 2005, said they will be present every day of the new trial.

"We were there every day last time, and we will be there every day this time," said Sharon Jabaji, mother of the victim.

"We do it for Salim. And to see that justice will be done."

A date for a new trial has not yet been set.