Ontario Court of Justice
Date: 2017-09-05 Court File No.: Newmarket 16-01781
Between: Her Majesty the Queen — and — Wayne John McLeod
Ruling on Mistrial Application
Heard and delivered: September 5, 2017
Counsel:
- Mr. Robert De Chellis, counsel for the Crown
- Ms. Jessica Sickinger, counsel for the defendant
KENKEL J.:
[1] The defence applies for a mistrial based on a concern raised by the Crown during the trial that the accused may have been drinking alcohol today and might be impaired. The Crown's concern was based on observations by an officer in the hallway. Defence counsel subsequently spoke with her client and confirmed that he had not been drinking and was not intoxicated. He's fit to proceed with the trial. The defence submits that the fact that the issue was mentioned may prevent her client from receiving a fair trial where the charge he faces relates to alcohol and driving.
[2] A reasonable apprehension of bias results in a loss of jurisdiction and renders a trial unfair. 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. 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 compromised by the concern expressed to the court. 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
[3] An informed observer would likely note two things: First, trial courts routinely hear prejudicial evidence later found inadmissible and it's part of the judicial role to disregard such evidence and decide a case only on evidence properly admitted. Second, nothing prejudicial resulted from the concern expressed by the Crown. The officer was right to bring the concern to the Crown's attention and the Crown was right to advise the court of any concern that could compromise the trial process. That concern was addressed and the result simply confirms that we're able to proceed.
[4] The application for mistrial is dismissed.
Delivered: September 5, 2017
Justice Joseph F. Kenkel