Court of Appeal for Ontario

CITATION: R. v. Toutissani, 2007 ONCA 773

DATE: 20071113

DOCKET: C47181

MACPHERSON, JURIANSZ and LAFORME JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

ROMAN TOUTISSANI

Appellant

Counsel:

Roman Toutissani, in person, for the appellant with the assistance of Mara Greene, duty counsel

Nicholas E. Devlin for the respondent

Heard: October 22, 2007

On appeal from the order of Justice Ian V.B. Nordheimer of the Superior Court of Justice dated April 30, 2007, quashing the mistrial decision of Justice Jeff Casey of the Ontario Court of Justice dated December 19, 2006.

Reasons for Decision

MACPHERSON J.A.:

[1] The appellant was charged in November 2001 with four counts of aiding and abetting Russian nationals to enter Canada without proper documentation as required by the Immigration Act, R.S.C. 1985, c. I-2.

[2] The trial unfolded over 45 days. At the conclusion of the evidence, and on the cusp of closing submissions, the trial judge declared a mistrial. He did so on his own motion and over the objections of both the Crown and the accused because, in his view, he might be perceived as being biased against the accused. The basis for his decision was the fact that he had previously written letters of reference for the court reporter in the case who had just testified as a witness after the accused had challenged the production of transcripts.

[3] The Crown brought an application for an order in the nature of certiorari and mandamus quashing the mistrial order made by the trial judge. The application judge, Nordheimer J., made the requested order and ordered the trial judge to “continue and complete” the trial.

[4] The appellant, who opposed the mistrial order when the trial judge raised it, now appeals the application judge’s order quashing it.

[5] There is no merit in the appeal. I agree with the application judge’s order and with his reasons for making the order. In saying this, I wish to highlight three aspects of the application judge’s reasons.

[6] First, I agree with the application judge that it is regrettable that the trial judge allowed the accused (who was representing himself at this juncture in the trial) to call the court reporter as a witness. As the application judge said, “it remains the fact that the issue respecting the transcripts was collateral to any decision regarding the merits of the prosecution itself.” In addition, on a broader plane, I endorse the following observation by the application judge:

[I]t should be the rare case where a court official such as a court reporter is compelled to participate in the trial itself. It is important that court reporters, as with all court officers, should not only be neutral between the parties but should also be seen as being neutral.

[7] Second, there was no basis for the trial judge’s conclusion that he could not continue to preside at the trial because he might be perceived as being biased against the accused. I agree with the application judge on this point:

[T]he trial judge did not at any point state that the circumstances surrounding the transcripts issue had, in any fashion, coloured the trial judge’s attitude towards Mr. Toutissani or otherwise prejudiced his position before the court. The trial judge did not say that he was not able to fairly and impartially adjudicate on the charges before him. Rather, the declaration of a mistrial was based entirely on the trial judge’s concern that there might be an apprehension of bias by Mr. Toutissani even though Mr. Toutissani had not made any such suggestion. To the contrary, Mr. Toutissani was imploring the trial judge to continue to complete the trial.

[8] In my view, the application judge’s analysis on this point is entirely consistent with the leading cases dealing with judicial bias, including R. v. S. (R.D.), [1997] 3 S.C.R. 484, Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, and Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 39, [2005] 2 S.C.R. 91.

[9] Third, I explicitly endorse the application judge’s statement that “[t]he declaration of a mistrial, like the declaration of a stay, should be granted only as a last resort, in the clearest of cases and where no remedy short of that relief will adequately redress the actual harm occasioned.”

[10] There is good reason for such a strong statement, as highlighted by this case. A seemingly simple criminal trial consumed 45 days of court time spread over an incredible 81 months. Near the end of the trial, the trial judge declared a mistrial, and he did so over the objections of both the Crown and the accused. The “actual harm” caused by this ruling was a manifest failure of justice for the prosecution and accused alike, a substantial allocation of court resources and staff to no effect, and dislocation and stress experienced by many witnesses, again to no effect. It is crucial that trial judges try to avoid these consequences. The application judge’s reasoning and order are faithful to this goal.

[11] For these reasons, I would dismiss the appeal.

RELEASED: November 13, 2007 “JCM”

“J.C. MacPherson J.A.”

“I agree R.G. Juriansz J.A.”

“I agree H.S. LaForme J.A.”