Court File and Parties

Ontario Court of Justice

Date: 2017-04-04

Court File No.: 15-04402 Newmarket

Between:

Her Majesty the Queen

— and —

Carlos Pandeirada

Ruling on an Application for a Mistrial

Before: Justice Joseph F. Kenkel

April 4, 2017

Counsel:

• Mr. Lucas O'Neil, counsel for the Crown
• Mr. Gary Stortini, counsel for the defendant

Decision

KENKEL J.:

[1] The applicant is charged with operating a motor vehicle with a blood alcohol level in excess of the legal limit – "Over 80". At the close of the second day of trial the Crown asked the accused in cross-examination about three previous charges he'd faced involving drinking and driving offences. The defence objected and applied for a mistrial.

[2] The defence submits that the Crown's questions raise a reasonable apprehension of bias such that a mistrial must be declared. The Crown submits that the questions were not asked for an improper purpose and that the court can otherwise disregard the questions and continue with the trial.

[3] The reason given for asking the accused about past related charges was to show some familiarity with the criminal justice system in response to the accused's evidence on the Charter voir dire regarding his understanding of the right to counsel advice in relation to counsel of choice. The questions are highly prejudicial and the probative value of any response would have been minimal in relation to the particular right to counsel discussion at issue in this case. The Crown had other evidence on this point including the officer's evidence and an in-car video of the right to counsel discussion.

[4] A reasonable apprehension of bias results in a loss of jurisdiction and renders a trial unfair. Even if the subsequent decision is well founded in the evidence, that will not restore fairness to the trial. R v RDS, [1997] SCJ No 84 at para 100. I'm mindful that proof of actual bias is not required, the appearance of bias is sufficient – "Not only must justice be done, it must also be seen to be done." R. v. Sussex Justices, Ex Parte McCarthy [1923] All ER Rep 233.

[5] The test for assessing reasonable apprehension of bias in these circumstances is whether a fully informed person would reasonably conclude that the court's ability to decide the matter fairly has been impaired by the improper questions in cross-examination. See: R v Mallory 2007 ONCA 46, [2007] OJ No 236 (CA) at para 318, Yukon Francophone School Board, Education Area #23 v Yukon (AG) 2015 SCC 25, [2015] SCJ No 25 at para 37.

[6] Judges are routinely called upon to disregard inadmissible evidence. It's fundamental to the judicial role that cases are decided only upon properly admissible evidence. R. v. Novak, [1995] BCJ No.1127 (CA) at para.8, R. v. S.S. [2005] OJ No.142 (CA) at para.3. In this case the questions put were highly prejudicial and I have some concern about their potential for even an unconscious, negative effect on a trier of fact. In my view, where the Crown has introduced inflammatory or highly prejudicial evidence into a trial, courts should not be too quick to discount the effect such evidence might have. While I may be able to disregard such evidence, I find that a well-informed observer could reasonably apprehend the potential for bias and view this trial now as unfair.

[7] I'm satisfied that the Crown put the questions in cross-examination while focused on the Charter issue and for not for any further, improper purpose. I'm mindful that this is the second day of trial in a case delayed many times by unusual circumstances. A mistrial is a remedy of last resort, but I find that I must declare a mistrial in this case.

Released: April 4, 2017

Justice Joseph F. Kenkel