W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2)
of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
COURT OF APPEAL FOR ONTARIO
Doherty, Simmons and Lang JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Dennis Chiasson
Appellant
Margaret Bojanowska, for the appellant
David Lepofsky and Chikeziri Igwe, for the respondent
Heard and orally released: November 3, 2009
On appeal from the conviction entered by Justice Arrell, of the Superior Court of Justice, sitting with a jury, dated May 1, 2007.
ENDORSEMENT
1The appellant was charged with sexually assaulting C.L. and his younger brother, J.L. The appellant testified and denied the allegations. A jury convicted the appellant of assaulting both complainants. The appellant appeals from the convictions.
2The principal ground of appeal arises out of the trial judge’s refusal to declare a mistrial after a Crown witness made certain potentially prejudicial comments. The resolution of that ground of appeal does not require a recitation of the evidence. It is sufficient to say that the case came down to the complainants’ version of several events and the appellant’s denial and explanation for those events. There were certainly reasons to question the reliability of the complainants’ evidence, however, it was open to the jury to accept that evidence and reject the appellant’s denial.
The Mistrial Application
3A man named Michael Waters testified for the Crown. He was a friend of the appellant and operated an overnight camp for teenagers. The appellant first met C.L. at this camp. The appellant was a volunteer there and C.L., who was not happy at home, attended at the camp. Eventually, the appellant and C.L. became very friendly.
4During his evidence, Mr. Waters explained that the appellant had befriended his son, but that their friendship had waned when the appellant became friends with C.L. Mr. Waters explained that this angered his son. At this point of Mr. Waters’ examination-in-chief, defence counsel asked that the witness be cautioned against repeating what had been said to him by others. Crown counsel asked Mr. Waters to be careful not to repeat what had been said to him by other people, such as his son. The Crown said to Mr. Waters “we don’t want to hear that as part of your evidence.”
5The examination-in-chief continued and within a very few answers, Mr. Waters gave evidence that he was told that his son had called the appellant a “rapist pedophile” and that the appellant had then threatened to sue Mr. Waters for defamation. Mr. Waters further testified that he had been told that other boys who were friends of his son had called the appellant a “pedophile” because he was chatting on the Internet with young teenage boys. This evidence had no relevance to the charges and was clearly potentially prejudicial.
6After Mr. Waters’ second use of the word “pedophile”, the trial judge interrupted and suggested that the witness would have to be cautioned again about impermissible hearsay. The Crown appeared to acknowledge the concern and continued his questioning. A few questions later, Mr. Waters repeated his evidence that the appellant was angry with Mr. Waters because, according to the appellant, Mr. Waters’ son had called him a “rapist pedophile”.
7Counsel for the appellant objected after this third reference to the word “pedophile” and the jury was excused. The trial judge instructed the Crown to be careful that no further references were made to the potentially prejudicial terms. Mr. Waters’ examination-in-chief continued for a few more moments and was completed at the end of the day.
8Counsel for the appellant did not request that the trial judge instruct the jury concerning the potentially prejudicial comments that had come out from Mr. Waters. Instead, he told the trial judge that he was considering bringing a mistrial application.
9Mr. Waters was briefly cross-examined the next morning, a Thursday, and two additional Crown witnesses testified. The Crown closed its case and the matter was adjourned to allow counsel an opportunity to prepare his mistrial application.
10The mistrial application was brought the next morning (Friday). The trial judge declined to declare a mistrial holding:
It would appear that generally a mistrial should only be declared in clear cases, and when the matter is so prejudicial that a jury would be unable to disregard it even though a direction is given. There is no doubt the words are prejudicial that were used. I do not, however, believe that they are so prejudicial that there is a real danger of a miscarriage of justice in that Mr. Chiasson will not get a fair trial.
The significance of the evidence of Mr. Waters is small when the totality of the evidence is considered. The jury, in my view, will decide this case based upon the complainants’ and parents’ evidence, and whatever evidence the defence might lead.
It is clear as I watched the jury when the words were said that there was no reaction to them. There has not been one shred of evidence left with this jury regarding any other problems the accused has had with the law that could ever lead them to conclude he had been considered a pedophile. In fact, the evidence is that he was so angry upon hearing what Joshua called him that he threatened a lawsuit for defamation. And the impression I think has been left with the jury that that anger and threat of the accused stopped the name-calling by Joshua.
Again, one would therefore be left with the impression Joshua knew those words to be untrue, and basically said them as sour grapes. I took the words in that context, and I expect the jury would as well.
11The trial judge then provided counsel with a copy of what he proposed to say about the potentially prejudicial evidence. The trial judge proposed to give that instruction to the jury immediately. Neither counsel had any objection to the instruction, the timing of the instruction or suggested that the judge should say anything more to the jury. The trial judge’s admonition to the jury delivered on Friday morning included the following:
… You will further recall Mr. Waters saying that because of his son’s anger he called Mr. Chiasson a rapist pedophile, and at that point, I stopped the evidence and advised that it was not proper because it was hearsay, and you returned to jury room. I hope you remember that scenario. At the beginning of this trial, I told you a number of times, and very clearly, that you could only make your decision based on properly admitted evidence. As you no doubt have concluded what Mr. Waters said his son said is hearsay evidence, and should not have been said. Mr. Waters or any other witness cannot tell you what someone else has said; only the person who said the words can give that evidence so that you can see them, you can hear them tell their story, and watch and hear them be cross-examined, so that you can determine what, if anything, you wish to believe out of their evidence. Joshua Waters is not being called as a witness, because I assume the lawyers have decided, he adds absolutely nothing to the case and cannot assist you in making your decision. There is absolutely no evidence that we have heard to indicate Mr. Chiasson having any way any type of history that would justify Joshua calling him a pedophile. You have heard numerous names bandied about in this trial from “child molester” to “puppet”, and now “pedophile”; none of that is evidence that you should in any way consider. You should decide this case on the evidence that establishes the facts of conduct and actions, and not on name-calling, innuendo, conjecture or rumour. …
12The trial concluded on the following Monday. The trial judge made no reference to any part of Mr. Waters’ evidence in his charge to the jury. The jury did have a question about Mr. Waters’ evidence, however, that question related to the parts of Mr. Waters’ evidence that were clearly relevant to the charges and not to the part of his evidence where he made the potentially prejudicial comments. The trial judge’s answer to the jury’s question was approved by counsel for the appellant and the Crown.
13The trial judge was asked by defence counsel to repeat the mid-trial warning he had given to the jury as part of his closing instructions. The trial judge had indicated earlier that he would do so. He ultimately determined that he would not include the further caution in his closing instructions and said nothing about the potentially prejudicial evidence.
14A mistrial is appropriate where that remedy is necessary to prevent a miscarriage of justice: R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857 at para. 75. Other less extreme remedies, such as an appropriate mid-trial instruction, should be considered and rejected as inadequate before a mistrial is granted: R. v. Toutissani, 2007 ONCA 773, [2007] O.J. No. 4364. The determination of whether a mistrial should be granted is ultimately a matter in the discretion of the trial judge. As with other discretionary decisions, this court will not interfere with the decision of the trial judge except where the court concludes it is clearly wrong or based on some erroneous principle.
15This was a close case. The potential prejudice to the appellant from the three references to “rapist pedophile” and “pedophile” is obvious. Certainly, it was arguable that the prejudice could not be cured by a corrective instruction. However, we are satisfied that it was open to the trial judge in the exercise of his discretion to conclude that a mid-trial instruction could remove the potential prejudice. The mid-trial instruction given here was, in our view, up to that task. That instruction properly characterized the comments not as anyone’s opinion, but rather as comments made in anger by Mr. Waters’ young son. The trial judge told the jury that the comments had no evidentiary value. He told the jury that their decision could not depend on “name-calling, innuendo, conjecture or rumour”. In our view, this instruction clearly identified the potential prejudice and emphatically told the jury why those comments could play no role in their deliberations.
16Counsel for the appellant, in her able submissions, stressed that the jury heard the potentially prejudicial evidence on Wednesday afternoon and were not instructed to ignore that evidence until sometime on Friday morning. While it is true parts of two days had passed, the trial had in fact progressed very little during that time. Apart from the completion of Mr. Waters’ examination-in-chief and the brief cross-examination, the jury heard only the evidence of two additional Crown witnesses. That evidence was not in dispute. The rest of the time was occupied with the mistrial application.
17Defence counsel did not request a mid-trial instruction at any earlier point in time. Instead, he told the trial judge that he was considering bringing a mistrial application, which he in fact brought the Friday morning. While other judges might have proceeded somewhat differently, we do not think that this trial judge can be faulted for waiting to see if counsel would bring a mistrial application and for hearing that application before deciding what, if anything, should be said to the jury.
18Counsel for the appellant also argued that the trial judge’s failure to repeat the caution in his closing instruction was fatal. Once again, the trial judge could have repeated the instruction. That is a decision that was very much for him to make. We cannot conclude that the failure to repeat the instruction was fatal. The mid-trial instruction as given was appropriate and, in our view, would still have force some few days later when the jury retired to consider this matter.
19Trial judges are faced with a very difficult task when asked to declare a mistrial. This trial judge had the advantage of having seen this jury operate over a period of time. He had gained a sense or a feel for the dynamics of this trial. He had an appreciation for the potential effect of the impugned evidence on this jury that cannot be conveyed to this court through the written word of the transcript. The trial judge took into account the feel he had for this jury’s reaction to the potentially prejudicial comments. We think he was entitled to do so.
20We are not satisfied that the trial judge’s exercise of his discretion was clearly wrong. Nor has the appellant demonstrated that the discretion was exercised on the basis of any erroneous principle. This ground of appeal fails.
21The second argument advanced by the appellant concerns the adequacy of the instruction as to the position of the defence. There are different ways to present the position of the defence and the Crown. There is always something that was not said that could have been said in support or against one or other of the positions. This trial judge approached the evidence by relating the positions of the parties as it applied to the specific counts in the indictment and by reviewing some of the evidence as it applied to each count. In our view, that was an appropriate approach and fully set forth the position of the defence as it related to the various incidents underlying each of the charges.
22The appeal is dismissed.
“Doherty J.A.”
“Janet Simmons J.A.”
“Susan E. Lang J.A.”
