Court of Appeal for Ontario

Date: 2025-09-17

Docket: COA-22-CR-0045

Judges: Fairburn A.C.J.O., Wilson and Rahman JJ.A.

Between

His Majesty the King Respondent

and

Duncan Sinclair Appellant

Counsel

Naomi Lutes, for the appellant

Roger Pinnock, for the respondent

Heard: September 11, 2025

On appeal from the conviction entered by Justice Anne M. Molloy of the Superior Court of Justice, sitting with a jury, on November 12, 2021.

Reasons for Decision

[1] Introduction

This is an appeal from conviction for first degree murder. The sole ground of appeal rests on whether the trial judge erred in dismissing a mistrial application.

[2] The Facts

The deceased was the appellant's mother. She was killed at her workplace in the PATH at Commerce Court in Toronto on April 10, 2019. The high-quality video surveillance captured the murder in detail, including a clear shot of the killer who was wearing a hoodie, baseball hat and jeans.

The assailant used a knife with a purple handle to kill the deceased.

The live issue at trial was whether the man depicted in the surveillance video was the appellant and, if so, whether this was a planned and deliberate murder, making it first degree murder.

[3] The Crown's Case and Inadmissible Evidence

As their final witness, the Crown called the officer in charge of the investigation.

It is agreed that the trial Crown elicited two pieces of inadmissible evidence during that officer's evidence:

(a) the officer's testimony as to what he had learned from others about the appellant's connection to a particular residential address; and

(b) the officer's opinion that a man captured in a surveillance video from that residential address on the date of the murder was the appellant.

The residential address in dispute was important to the Crown's case, in the sense that the murder weapon – the purple-handled knife – was alleged to have come from that home. Therefore, connecting the appellant to that home filled what the appellant says was a "gap" in the Crown's case.

[4] The Trial Judge's Response

Just before the officer's in-chief evidence was complete, defence counsel objected to the opinion identification evidence having been elicited. Defence counsel said that they may wish to bring a mistrial application but wanted to consider the matter overnight. Accordingly, and to keep the trial moving, the trial judge said that she would give a mid-trial corrective instruction, which would not preclude the ability of the defence to bring their mistrial application should they wish to do so. To this end, the trial judge promptly gave a corrective mid-trial instruction. It was short, yet crystal clear:

THE COURT: Ladies and gentlemen, remember at the beginning of the trial I told you that I would be giving you final instructions at the end, but every now and then from time to time I would be giving you instructions in the middle of the trial as things came up. This is one of those. And I will be covering this in much more detail in the final instructions that you get, but right now I want to tell you this because it will be fresh, and I want it to sink home. You heard this officer give evidence just now that he went to [the residential address] and he pulled the video surveillance for whatever days, and that he looked at it and satisfied himself that he had identified Duncan Sinclair coming and going on April 9th and April 10th, and not after that, and that he'd identified [Mr. Sinclair's brother] coming and going. [That] evidence is not admissible, none of it. This witness at the time he looked at that video had never even met Duncan Sinclair or [his brother]. He didn't know them. He had no history with them. He is not in a position to offer opinion evidence on the identity of the people he saw in that video. Problem number one. Problem number two. There is no way for you to assess the reliability of his evidence, even if it was admissible because you haven't seen the video either. It's not part of the evidence at this trial. So you'll be, when I'm instructing you about what to do with these other witnesses who have identified Mr. Sinclair as the person they saw in the pictures and videos, there's a way to go about that and there are certain, there's considerable caselaw on it, and what you use and how you do it, and the factors you take into account — none of that framework is laid with respect to this witness saying [Mr. Sinclair's brother] was there and Duncan Sinclair was there. This opinion is not admissible. His evidence on it is not admissible. You must disabuse yourself completely of everything he said about that. All right. Cross-examination, [defence counsel].

Following the mid-trial instruction, defence counsel conducted the cross-examination of the officer in charge. The Crown closed its case, and the defence called no evidence. The trial was adjourned for the day. The following morning, defence counsel pursued the mistrial application, which was dismissed with reasons to follow.

[5] The Jury Charge

The jury was charged a few days after the mistrial application was dismissed. The jury was given standard instructions, including that it was the sole task of the trial judge to decide what evidence the law permitted the jury to consider and what procedure to follow in the case. The trial judge also reminded the jurors of their duty to accept and follow all of the rules of law that she instructed them on. She warned them that they could not pick and choose among those instructions on the law.

To that end, the trial judge gave two specific legal instructions about disregarding the testimony elicited by the Crown through the officer in charge.

First, in the context of instructing the jury on hearsay, the trial judge pointed to the officer's testimony as an example of when the jury could not rely upon evidence for the truth of its contents:

Another example of hearsay evidence that you must be careful not to accept for its truth was the testimony of [the officer in charge]. [He] was not present at the search of [the residential address]. He had no first-hand knowledge of who lived there or who was present at the time of the search. … All of this evidence is hearsay and not admissible for the truth of who lived there.

The trial judge then reinforced the corrective mid-trial instruction as it related to the officer's inadmissible opinion evidence about the identity of the accused on the surveillance video from the residential address:

I have spoken to you already about the testimony of [the officer in charge] as to whether he could identify individuals on a videotape from [the residential address] as being either Duncan [Sinclair] or [his brother]. Having described to you the process for considering what reliance you can place on witnesses identifying somebody shown on video, I think you will understand why [the officer in charge] simply does not fall into this category. He had never met either Duncan [Sinclair] or [his brother] at the time. We have no idea what he was using as a point of comparison.

The video itself was not made an exhibit, so it is impossible for you to consider whether it was of sufficient quality to make the identification reliable. You have no idea how long the person in question was shown on video, or even whether his face was visible. His identification of those individuals as being Duncan [Sinclair] and/or [his brother] must be disregarded in its entirety. It should play no part at all in your deliberations.

[6] The Mistrial Application

It is against that factual backdrop that we must ask ourselves whether the trial judge erred in her decision to dismiss the defence application for a mistrial.

The appellant argues that the mid-trial and final instructions to the jury were simply not adequate to address the miscarriage of justice arising from the Crown having improperly elicited such critical evidence for its case. Only a mistrial would have cured the prejudice flowing to the appellant's right to a fair trial.

[7] Standard of Review

The parties are agreed on the standard of review.

The decision on a mistrial application is a discretionary one and will only be interfered with in circumstances where the decision is clearly wrong or where it is based upon an error in principle. Here, the appellant says that the decision was clearly wrong because, at a minimum, what happened resulted in an appearance of a miscarriage of justice in the sense that it served to taint the administration of justice. As well, the appellant contends that there are two errors in principle reflected in the trial judge's reasons for dismissing the mistrial application: (i) she failed to consider the cumulative effect of the inadmissible evidence in relation to other inadmissible evidence that had already been elicited; and (ii) she overemphasized the strength of the Crown's case, almost as if she were applying the curative proviso to the determination of whether a mistrial was necessary.

[8] Analysis

Despite the capable submissions of appellant's counsel, we find ourselves aligned with the also-capable submissions of respondent's counsel.

While a mistrial may be an appropriate remedy where the integrity of the decision-making process or the right to a fair trial have been compromised, it remains always a remedy of last resort. Where something short of a mistrial can safely repair a compromised trial, the option is to choose that something.

That is what the trial judge did here. She gave a timely and what can only be described as a strongly worded corrective instruction to disregard the impugned evidence. That instruction told the jury, in no uncertain terms, that they were required to disregard portions of the officer's evidence, evidence they had just heard.

Those instructions were then repeated and reinforced in the charge to the jury. The trial judge was entitled to have confidence, as should we, in the fact that the jury would follow her instructions and place no weight on the testimony that formed the subject of those instructions.

As for the alleged errors in principle, respectfully, we see matters differently. Essentially, the trial judge is said to have erred by failing to consider the impact of the impugned testimony within the context of the evidentiary record as a whole. Most specifically, the appellant submits that the trial judge leaned too heavily on the strength of the Crown's case in arriving at the conclusion that the mistrial application should be dismissed.

On our reading of the trial judge's reasons for dismissing the mistrial application, she carefully measures the impugned evidence within the record as a whole. While it is true that the trial judge's analysis refers in detail to other bodies of incriminating evidence, those references are properly made so as to place the impugned evidence into its proper context with a view to understanding its importance against the entire trial. This will often be an important feature of determining a mistrial application arising out of improperly elicited evidence. Indeed, where a mistrial is called for because of improperly elicited evidence near the end of trial, a contextual analysis, like the one conducted in this case, will often ensure a proper understanding of the relative impact that the impugned evidence may have had on the triers of fact and whether they will remain in a position to fairly decide the case.

In short, we see no error in the trial judge proceeding to consider the import of the hearsay and opinion evidence within the context of the entirety of the evidentiary record.

In our view, there is no point in exhaustively reviewing the evidentiary record, which the trial judge carefully considered in her ruling: R. v. Sinclair, 2021 ONSC 7563, at paras. 37-49. It can only be described as furnishing a formidable Crown case, particularly when it came to the issue of identity. The evidence included the clear surveillance video from the murder scene where the killer is, at one point, looking straight at the camera, combined with four witnesses (two of whom are the appellant's siblings) having testified that the killer with the knife was the appellant.

Bearing in mind that the impugned evidence arose in the context of an otherwise overwhelming Crown case on identity, the immediate, forceful corrective mid-trial instruction, and the clear instructions in the charge to the jury, it simply cannot be said that the trial judge's exercise of discretion was clearly wrong. Nor do her reasons reflect an error in principle.

[9] Conclusion

The appeal is dismissed.

"Fairburn A.C.J.O."

"D.A. Wilson J.A."

"M. Rahman J.A."