ONTARIO COURT OF JUSTICE

CITATION: R. v. Munda, 2021 ONCJ 703

DATE: 2021 07 26

BETWEEN:

HER MAJESTY THE QUEEN

-AND-

PAUL TUTSHUMU MUNDA

Before Justice P.L. Bellefontaine Heard on July 8, 2021 Reasons for Judgment released on July 26, 2021

Andrew Midwood........................................................... counsel for the Crown Amanda Somek.................................... counsel for the defendant Paul Munda

BELLEFONTAINE J.:

[1] These are the reasons for my July 8, 2021 ruling denying a mistrial application brought on behalf of the defence.

[2] Mr. Munda is on trial for a number of offences including one alleging that he was in possession of a loaded prohibited weapon, contrary to Section 95(a) of the Criminal Code and one that he obstructed police. The trial has proceeded on the basis of the trial evidence being blended with the evidence relating to Charter applications under Sections 7, 8, 9, 10 and 11(d) of the Charter. The Charter breaches are on the basis that:

a) Mr. Munda was unreasonably detained based on racial profiling contrary to Section 9 of the Charter.

b) That the traffic stop was a ruse and therefore unreasonable, contrary to Section 8 and 9.

c) That the canine used in effecting his arrest used excessive force warranting a stay of proceedings pursuant to Section 7.

d) That the Section 10(a) right to be notified of the reason for arrest was not provided in a timely manner.

e) That his Section 10(b) right to contact counsel was not implemented in a timely manner.

[3] The mistrial application is brought on the basis that the Court's ruling on relevance on a Charter issue has resulted in improper questioning of Mr. Munda resulting in him admitting to being in possession of the illegal handgun. By virtue of the Court having heard the evidence that he possessed the firearm it is submitted there exists a real danger of a miscarriage of justice and it is impossible for him to get a fair trial. Further, it is submitted, the Defence can no longer argue that the gun, found along the route that Mr. Munda fled, was left there by some other person. Further, with the Court having heard the admission of possession of a firearm, Mr. Munda has a reasonable apprehension that the Court will be biased against him when making a determination as to guilt or innocence.

[4] At the conclusion of the Crown's case, the Defence indicated they wish to call evidence only on the Section 7 excessive force Charter application and the Section 10(a) failure to advise of the reason for arrest application. They also requested that the obstruct police charge be severed from the others. The basis for the severance request was that the hearing of Mr. Munda's evidence on the Section 7 Charter application might taint the judicial determination on the substantive charges and a severance would confine the potential tainting to just the inter-related obstruct police charge which encompassed the flight from the Cannabis Control Act investigation and/or the providing of a false name to police upon his arrest. I rejected the severance application on the basis that the obstructing police by fleeing from the Cannabis Control Act investigation was too inter-related with the other offences including the finding of the gun to support a severance. Further, Judge alone trials are predicated on a Judge being able to disabuse themselves of inadmissible inculpatory evidence that they hear during admissibility voir dires. In any event any tainting that might improperly result in relation to the weapons and other offences would be the same for a severed obstruct police charge as it would be for a non-severed one. The Crown consented to a variation of the proceedings to permit Mr. Munda to testify only to the Charter applications and requested clarity on which Charter issues the testimony will be confined to. The defence elected to testify with respect to the dog bite only.

[5] During the course of Mr. Munda's cross-examination he was asked if he was in possession of the handgun. The Defence objected on the basis that it was not relevant to the Section 7 inquiry and risked me hearing evidence that would taint me for my trial decision. I ruled against the defence apply R. v. Nasogaluak, 1 SC 206 at para. 32, which permits the use of force constrained by principles of proportionality, necessity and reasonableness and R. v. Gangle, 2011 ABCA 357, which discusses the degree of determination of a defendant to avoid being arrested as a factor to consider when the seriousness of an individual's jeopardy if he is caught to provide a motive to flee and informed the evaluation of the conflicting evidence as to whether he continued to flee despite warnings the dog will be used or alternatively stopping at an earlier stage than the police testify to. The police evidence being that the multiple bites were limited to those necessary to stop Mr. Munda and his evidence that they were gratuitous punishment. I note further that I would be obligated and able to disabuse myself of any inculpatory evidence received that did not apply to the Charter application.

[6] There is some inconsistency in the cases with respect to the wording of the test to be applied in considering an application for a mistrial. Our Court of Appeal, through endorsements in R. v. G.C., 2018 ONCA 392, and R. v. Howling, 2021 ONCA 386, have mentioned the lone dissent of Justice Lebel in R. v. Khan, 2001 SCC 86, at para 79 when he stated a Court "must assess whether there is a real danger the trial fairness has been compromised ". The majority found there was no basis for a mistrial but did not discuss or criticize the test as worded by Justice Lebel in dissent. More traditional wording was used by our Court of Appeal in its endorsement in R. v. Chiasson, 2009 ONCA 789, citing the post Khan Supreme Court decision of R. v. Burke, 2002 SCC 55. After referencing the cases dealing with mistrial applications the majority, including Justice Lebel, stated: "the common theme running through this caselaw is the test of whether there is a real danger of prejudice to the accused or danger of a miscarriage of justice". Consistently in the jurisprudence is the caveat that a mistrial should be granted in the clearest of cases. See R. v. Arabia, 2008 ONCA 565 at paragraph 49. As stated by the Court of Appeal in R. v. A.G., 2015 ONCA 159 at para 50". A mistrial is a remedy of last resort and should only be ordered where necessary to prevent a miscarriage of justice".

[7] I do not feel it necessary to resolve any inconsistency in the different wordings for this case. It may be that the R. v. Khan "trial fairness" test is more process focused and trying to align itself with the constitutional fair hearing requirement of section 11(d) of the Charter. A test focused on preventing a miscarriage of justice may be interpreted to apply itself to considering the end result of the trial as opposed to the trial process. After considering the arguments in this matter I am of the opinion the mistral application must fail on either consideration.

[8] I do not consider the process to have been unfair. The section 7 excessive force case law, that underpins the relevance ruling that the necessity of using the dog can be considered in light of the determination demonstrated by an individual to flee from the police, is included in the Crown's factum. Also included is the Crown's intention to cross examine Mr. Munda on his filed will say statement which is inconsistent with the Crown's case and ultimately with Mr. Munda's direct examination evidence. The rules of relevance are well established. Is fact "A" more likely to be true if fact "B" is proven to be true? Is Mr. Munda more likely to persist in fleeing from police if he is caught committing serious criminal offenses than if being detained while having committed no offense? I consider the affirmative answer to be a foreseeable one. During oral argument the Defence acknowledged that Mr. Munda's veracity is an issue in the excessive force Charter application. Equally so is the evidence of all of the officers involved in pursuing him. Assessing his credibility and reliability and the officers by cross-examining him on the inconsistencies between his evidence and the officers, on the chain of events would be commonplace. Equally so is having him confirm the evidence of the officers to support their credibility and reliability. The Defence may not have turned their mind to the broader scope of cross-examination that might flow from him testifying on the section 7 Charter application, but that does not derogate from the fairness of the trial that is following well-known evidentiary and procedural rules. This is particularly so when the Crown factum highlights the scope of the issues that may arise.

[9] It was submitted Mr. Munda was inappropriately questioned in a number of areas. Among them, that he was asked about his exercise of his right to silence. Any question in this regard was in respect of his refusing to answer the Crown attorney's questions on the Charter hearing. Canada does not recognize a testimonial right to silence as does the United States. Mr. Munda did not have a right to remain silent during his questioning and accordingly no impropriety arose. The further written submission that it was inappropriate to cross-examine him on his veracity is also without merit. The presentation of oral evidence and cross-examination on it is for the purposes of determining the credibility and reliability of the facts advanced by him in support of the application. It was also submitted that questions went beyond" the altercation proper with the canine". As discussed earlier the Section 7 excessive force breach that is alleged properly permits questioning on the full flight from police including the chase by officers, the attempt to physically control him, the attempts to Taser him, his removal of his coat and the warnings the police have testified to with respect to releasing the dog if he did not stop. Whether that evidence is accepted or not and whether his evidence is accepted or not the evidence does bear on the relevant legal factors of whether, and the extent to which, use of the dog was necessary, reasonable and proportionate. Finally, I consider it within the bounds of proper cross-examination to suggest to Mr. Munda that he was in fact fearful and nervous of being apprehended for breaching his bail and weapons prohibition and possessing the firearm even though the officers viewed him to be cooperative. There was no mischaracterization of the officer's evidence. They cannot testify as to his internal emotional state and it was not improper for the Crown to question him on it and do so in a leading fashion. In conclusion I do not consider any of the specific areas of questions that are said to have been improper to have in fact been improper, or to have affected the fairness of the trial.

[10] As well I do not see those questions or the other concerns raised, to have created a danger of a miscarriage of justice. To the extent the questioning has implicated other Charter breaches, beyond section 7, Counsel have agreed to advise the Court, before final argument commences, what evidence will be limited to which Charter purposes. The Crown has agreed that given Mr. Munda's consistent evidence that his will say statement was in error, and Counsel's statement that due to Covid restrictions she was unable to review it with him, the Crown will not be submitting any inconsistency exists between Mr. Munda's evidence and his will say that affects Mr. Munda's credibility. Given individuals widespread exposure to American television where "taking the 5th" arises Mr. Munda's confusion about having that right will not prejudice him.

[11] The Defence has the right as always to rely on the presumption of innocence and the heavy burden of proof which rests on the Crown to submit that the Crown’s evidence does not establish beyond a reasonable doubt that Mr. Munda was in possession of the gun.

[12] The fundamental concern re-iterated by the Defence is that having heard Mr. Munda's admission that he possessed the gun he reasonably perceives that the Court will be biased against him in making its decision on guilt or innocence. While acknowledging that courts regularly ignore such inculpatory admissions following statement voir dires they submit it is qualitatively different to hear the admission by way of in person sworn evidence before the Court. I do not accept that proposition. It is a distinction without a difference.

[13] With over 90% of criminal matters dealt with on a judge alone basis in the Ontario Court of Justice the hearing of such excluded admissions is commonplace. Judges can and do disabuse themselves of such evidence and are obligated to give considered reasons to allow any reviewing Court an opportunity to consider whether the admissible evidence supports a finding of guilt. I am satisfied that I can and will ignore Mr. Munda's admissions or any of the evidence Counsel jointly asked me not to consider when arriving at my decision. This is not a case where the heightened concerns that arise after a judgment and findings of credibility against a defendant apply.

[14] Accordingly the mistral application Is denied.

Released: July 26, 2021

Signed: Justice P.L. Bellefontaine