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A motion for mistrial in a child protection proceeding was dismissed despite late disclosure.
A motion for mistrial was brought by the respondent father in a child protection status review application involving two children.
The father and the Office of the Children's Lawyer sought to overturn the trial on grounds including the agency's failure to promptly disclose a new investigation commenced during trial, alleged Charter rights violations, sequential and redacted disclosure, failure to produce police records, the children's expressed preference for a new trial, and potential judicial bias.
The court dismissed the motion, finding that while the agency's failure to promptly disclose the investigation was imprudent, the prejudice could be remedied through recalling witnesses for cross-examination.
The court found no fatal wounding of the trial process and determined that a mistrial should only be granted as a last resort in the clearest of cases.
Exceptional misconduct justified costs against the OCL.
In a child protection costs endorsement arising from a failed mid-trial application about a child’s asserted First Nation identity and community, the court held that the Office of the Children’s Lawyer had acted in a patently unreasonable and indefensible manner.
The issue was raised only after the applicant and another party had closed their cases, despite earlier pleadings and orders clearly identifying the child otherwise, and the OCL pursued the matter without a proper evidentiary foundation.
The court found that the OCL’s conduct wasted three and one-half days of trial time and materially delayed determination of the children’s status review.
In exceptional circumstances, costs were therefore awarded against the OCL on a full recovery basis at the Legal Aid rate, together with costs of the costs submissions.
