COURT FILE NO.: 09-30325

DATE: 2012/11/22

ONTARIO

SUPERIOR COURT OF JUSTICE

PUBLICATION BAN IN EFFECT UNDER S. 648 OF THE CRIMINAL CODE

BETWEEN:

HER MAJESTY THE QUEEN

Crown

– and –

TOBY LITTLE OTTER LAND

Accused

David Elhadad and Carl Lem, for the Crown

Anne London Weinstein and Neil Weinstein, for the Accused

HEARD: November 5 & 8, 2012

MID-TRIAL RULING #6 REGARDING

CROWN’S MOTION FOR A MISTRIAL

AITKEN j.

Nature of the Application

[1] On November 5, 2012, the Crown brought an application for a mistrial on the grounds that, during submissions on a mid-trial motion for permission to cross-examine Carl St-Cyr, Defence counsel had misled the court and Crown counsel in regard to their knowledge of what Mr. St-Cyr, the former co-accused, would say if the Defence called him as a witness. On November 5^th^, as a result of commitments previously given to the jury regarding timing, I put over full argument on this application until the jury had started their deliberations. The application was argued on November 8^th^ and, on the morning of November 9^th^, I ruled that the Crown’s application for a mistrial was denied. Shortly thereafter, the jury returned a verdict of guilty of second degree murder, as charged.

[2] Mr. St-Cyr was scheduled to testify as a Crown witness on October 12, 2012. Unfortunately, on that day, he was not produced by the Regional Detention Centre because, in error, following an earlier remand, he had been sent back to the institution where he was serving his sentence. Everyone assumed that he would be produced on October 15^th^ and the trial would continue. On Sunday, October 14^th^, Crown counsel advised via email that the Crown would not, in fact, be calling Mr. St-Cyr as its witness. Shortly thereafter, Defence counsel advised that the Defence would be calling Mr. St-Cyr as its witness, but wished permission to cross-examine him. A motion to this effect was brought on October 23^rd^. At that time, Defence counsel did not advise the court or Crown counsel that they had had the opportunity to interview Mr. St-Cyr in the cell block on the morning of October 15^th^ when he was at the court house but Crown counsel had decided not to call him. It is Defence counsel’s behaviour at the time of that motion which is the chief reason given for the Crown’s mistrial application.

[3] In that Mr. Land was found guilty of second degree murder, as charged, it might appear that there is no need to provide reasons for the dismissal of the Crown’s application for a mistrial. However, considering the highly charged nature of the submissions made on this application, and of other interactions between counsel earlier in the trial, I think it is important to explain my reasoning.

Context of Acrimony

[4] From the time of the pre-trial motions in this case, it was clear that there was a level of mistrust between Crown and Defence counsel that, thankfully, I have rarely seen in other criminal cases. This deepened during the trial proper, resulting in a crescendo of allegations and counter-allegations on Friday, November 2^nd^ and Monday, November 5^th^. Some of the build-up included the following incidents.

[5] On October 10, 2012, Crown counsel raised the concern that, despite Defence counsel agreeing with Crown counsel at the commencement of the trial that the only issue for the jury to decide was whether Mr. Land had the requisite mental state for murder, Crown counsel had come to understand from Defence counsel that a second, related, issue was who had wielded the sword. Crown counsel suggested that they had been misled into believing that who had wielded the sword was not in issue. Defence counsel objected to use of the word “misled” and noted that Defence counsel was under no obligation to disclose its defence. I commented at the time that, if the question of who had wielded the sword remained a live issue, I should not have been told at the commencement of the trial that the only issue was whether Mr. Land had the requisite mental state for murder. As well, counsel should not have agreed to my telling the jury, at the commencement of the trial, that the only issue they had to determine related to Mr. Land’s mental state.

[6] I did accept Defence counsel’s point that, in the context of this case, who had wielded the sword was not a separate issue that required a decision on the part of the jury. Mr. Land had tried to plead guilty to manslaughter at the beginning of the trial and had conceded that his unlawful assault on Mr. Doyon was a significant contributing cause of his death. Nevertheless, had I known that the issue of who had wielded the sword was a live issue, I would have worded my opening comments to the jury somewhat differently. The issue of whether any corrective action was required, such as an amended jury instruction, or the recall of witnesses, was considered. Neither at that time, nor subsequently, did Crown counsel seek any corrective action. Ultimately, I clarified this issue in my charge to the jury, and both Crown and Defence counsel agreed to these portions of the charge.

[7] Another example of the tension between counsel can be seen in an email exchange relating to ongoing disclosure issues. On October 5, 2012, Defence counsel asked Crown counsel for further disclosure regarding police reports and other documents relating to Mr. Land being abused as a child. Defence counsel gave Crown counsel a heads up that, at the commencement of their case, Defence counsel would be bringing a Scopelleti application, and they sought disclosure of information that would assist them in this regard. Finally, Defence counsel reminded Crown counsel of their obligation to make ongoing disclosure in regard to issues that might become relevant as the trial proceeded, one example being anything that the Crown would seek to rely on in reply to issues raised in the report of Dr. Gojer, the forensic psychiatrist retained by the Defence. In a blunt response delivered on October 10, 2012, Crown counsel complained of the lack of clarity in the request made by Defence counsel and concluded: “In the future, we’d appreciate receiving any requests from defence (beyond very basic ones) in a more discernible format so that we do not have to edit it ourselves before we can understand it.” Such a response was not called for.

[8] On October 26, 2012, Defence counsel raised the concern that, the previous day, Crown counsel had made use of Facebook material that Crown counsel, on his own, had edited, without first raising the issue on a voir dire so as to receive the court’s direction on what could be put before the jury and what was too prejudicial to be admitted or was otherwise inadmissible. Instructions were given to Crown counsel as to how to proceed on a go-forward basis so that this type of episode would not be repeated.

[9] On October 29, 2012, Defence counsel raised the concern that, during Mr. Land’s cross-examination, which was still in progress, Crown counsel had misstated evidence to him on four occasions and, on the basis of those misstatements, had accused him of lying or changing this story. Defence counsel had verified these misstatements through reference to the transcript. The examples provided by Defence counsel had also been jarring to me as I had initially heard the evidence; however, until I had access to the transcript, I could not pinpoint the origins of the misstatements. One reason for this was that, in posing questions to Mr. Land, Crown counsel fell into the practice of relying in a general way on previous statements or transcripts to suggest that Mr. Land had made a previous inconsistent statement, without taking Mr. Land to the specific statement attributed to him. Crown counsel had been directed earlier to refer to specific questions and answers previously given by Mr. Land, but had not faithfully followed that direction. Some of the misstatements and the subsequent questions posed to Mr. Land dealt with matters of significance to the Defence. After hearing submissions from Defence and Crown counsel, I ruled that all of the instances raised by Defence counsel had involved misstatements of the evidence. I concluded that one, very minor one, could be adequately dealt with by Defence counsel during re-examination. In regard to the other three, although Defence counsel wanted me to advise the jury of the correction, I afforded Crown counsel the opportunity to correct the damage done, subject to the proviso that, if he did not do so, then I would intervene. Crown counsel proceeded to apologize to the jury for the misstatements and to correct them. The trial proceeded, after a morning’s delay. During this interchange, Defence counsel referred to Crown counsel’s misstatements as being inadvertent. There were no allegations of intentional misconduct. In my view, the misstatements were dealt with satisfactorily, with no further steps being required to achieve trial fairness.

[10] On November 1, 2012, at the conclusion of the Crown’s one and a half day cross-examination of Mr. St-Cyr, and well after 4:00 p.m., Crown counsel questioned Mr. St-Cyr as to why his children had been taken away from him. This line of questioning was asked in the context of Mr. Land already having testified that he lied to the police to protect his friend, Mr. St-Cyr, in part because Mr. St-Cyr had children and he was a good father. Crown counsel referred to the Gladue Report that had been submitted at the time of Mr. St-Cyr’s sentencing and proceeded to impeach Mr. St-Cyr with the use of that document. Defence counsel advised that they had not received a copy of that document, nor was it being shown to Mr. St-Cyr so that he could verify what the report attributed to him. Crown counsel said he would provide Defence counsel with a copy but, first, he wanted to finish his questioning about Mr. St-Cyr’s children. After getting Mr. St-Cyr to agree that his children had been placed for adoption, Crown counsel went on to ask: “So if Mr. Land would be reporting that he’s taken the fall for you just so you can see your kids, that doesn’t make sense, does it?” In other words, Crown counsel used the document to indirectly impeach Mr. Land’s credibility.

[11] Defence counsel immediately objected, and I ruled that there were a number of problems with the question: (1) it lacked specificity in terms of timeframe; (2) no foundation had been provided as to what information Mr. Land had regarding the adoption of Mr. St-Cyr’s children; (3) it called for speculation as to what Mr. Land knew or thought; and (4) it assumed that Mr. St-Cyr would not have access to his children post-adoption, without there being any proof of that. To this list could be added that the question oversimplified Mr. Land’s evidence regarding his reasons for protecting Mr. St-Cyr, and the question invited Mr. St-Cyr to comment on the credibility of Mr. Land. Crown counsel was given the opportunity to deal with some of these issues. He did not do so. Once the jury was excused, Defence counsel formally objected to the lack of disclosure of this document by the Crown, after the Crown became aware of its relevance through statements made by Mr. Land to Dr. Gojer to the effect that he had lied to the police to protect Mr. St-Cyr because of his children. Defence counsel also raised concerns under Browne and Dunn. Defence counsel warned that they might have to bring a motion for a mistrial. The matter was put over to the following morning at 9 a.m., prior to the anticipated testimony of Dr. Derek Pallandi, an out-of-town professional witness, scheduled for 10 a.m.

[12] On the morning of November 2, 2012, Defence counsel advised that they would not be seeking a mistrial; however, they wanted a specific direction to be given to the jury to disregard the evidence that Mr. St-Cyr had provided regarding the adoption of his children. In the context of making their submissions, Defence counsel referred to “a pattern of intentional Crown misconduct”, providing examples which included: (1) the Facebook evidence, (2) the misstatements of the evidence, (3) criticizing Defence counsel’s speed and approach in asking questions – not when the questions were being asked – but later when Crown counsel was asking questions; (4) leaving the jury with the misunderstanding that witnesses could choose for whom they would or would not testify; (5) suggesting to the jury that there was something nefarious about Defence counsel having interviewed Mr. St-Cyr; (6) not making disclosure of the Gladue Report; and (7) not respecting the rule in Browne and Dunn.

[13] Quite understandably, Crown counsel was taken aback by the allegations of intentional misconduct. He indicated his desire for some time to consult counsel, and that time was given to him. The Defence finished its case with the brief evidence of a police officer, and then the Crown’s rebuttal witness, Dr. Pallandi, testified as the Crown’s forensic psychiatrist.

[14] As an aside, it was put to Dr. Pallandi, during cross-examination by Defence counsel, that this was a provocation case. More specifically, it was suggested that the import of Dr. Gojer’s evidence was that Mr. Land had been provoked to kill Mr. Doyon and that, assuming Mr. Land had the mental state requisite for murder, the provocation should result in his being convicted of manslaughter, not second degree murder. The forcefulness with which this proposition was put to Dr. Pallandi confused Dr. Pallandi and surprised Crown counsel and myself. Although it had been assumed throughout the trial that all of the factors relevant to the roll-up provision regarding Mr. Land’s mental state were relevant and in play, it had not been suggested by Defence counsel at any earlier juncture that this was first and foremost a provocation case. Again, as I mentioned earlier, it was agreed by counsel at the beginning of the case that the only issue to be left with the jury was that of Mr. Land’s mental state at the time of the offence. Subsequently, the Crown brought an application for a ruling that there was no air of reality to the provocation defence. I granted that application and did not charge the jury on the defence of provocation. In fact, due to the tenor of Defence counsel’s cross-examination of Dr. Pallandi, I specifically advised the jurors that there were no statutorily defined defences, such as self-defence, intoxication, or provocation, being left with them, and that the only issue they had to decide was whether Mr. Land had the requisite mental state for murder.

[15] At the end of the day on Friday, November 2^nd^, after the conclusion of Dr. Pallandi’s evidence, and after the jury had been sent away to the following Tuesday, the Crown Attorney and another Assistant Crown Attorney asked to address the court – the former in regard to the allegations of intentional misconduct on the part of Crown counsel, and the latter in regard to specific questions I had posed to Crown counsel. Those questions related to when Crown counsel first became aware that Mr. St-Cyr’s relationship with his children and Mr. Land’s knowledge regarding that relationship may be a relevant issue at this trial; when the Crown realized that the Gladue Report prepared for Mr. St-Cyr’s sentencing contained information relating to this issue; and why this document had not been disclosed to Defence counsel until after it had been used to cross-examine Mr. St-Cyr.

[16] The Assistant Crown Attorney asked that the disclosure and Browne and Dunn issues be put over to Tuesday so that he, Crown counsel, and the Crown Attorney could review all of the transcripts in the case and provide the court with a full answer to my questions that would take into account the context in which these issues arose. I would not put the matter over to Tuesday, the day the jury had originally been told to return, but agreed to hear that matter at the beginning of the day on Monday.

[17] The Crown Attorney indicated that she was there to deal with all of the serious allegations that had been made against Crown counsel. She indicated her willingness to speak with Defence counsel to see if those could be resolved. Defence counsel immediately stated that matters could be resolved. They apologized to Crown counsel for the comments they had made earlier in the day, in anger, and in the heat of the trial. They indicated on the record that their concerns for the prejudice that had been done to Mr. Land had lessened over the day, and they would be happy to discuss with Crown counsel over the weekend some resolution to the Browne and Dunn issue. They reiterated that they had not intended to make a personal attack on Crown counsel and that they resiled from any allegations of intentional misconduct on the part of Crown counsel. This unequivocal apology and withdrawal of all allegations of intentional misconduct on the part of Crown counsel was appropriate. Although it was understandable that Defence counsel were angry and upset about what they perceived to be unfair tactics on the part of the Crown the evening before, allegations of intentional misconduct were unnecessary.

[18] On Monday morning, November 5^th^, I learned that the Crown was bringing an application for a mistrial as a result of Defence counsel’s failure to advise the court and Crown counsel, prior to arguing the motion for permission to cross-examine Mr. St-Cyr, that Defence counsel had interviewed Mr. St-Cyr on October 15^th^. At the start of the day, I was also advised that Crown and Defence counsel had come to an agreement regarding not only the Browne and Dunn issue raised in the context of Mr. St-Cyr’s cross-examination, but also a Browne and Dunn issue that had arisen in the context of the Defence cross-examination of J.G-M. Defence counsel had not asked her whether she had her top off when Mr. Land arrived home on May 4, 2009 but then adduced evidence through Mr. Land that she had had her top off. The Crown raised a valid point – the rule in Browne and Dunn had not been respected during the cross-examination of Ms. G-M. However, the issue was first raised in response to the complaints Defence counsel had levied against Crown counsel.

[19] Shortly before submissions were made on Monday morning, I was provided with a précis dealing with the Stinchombe, Browne and Dunn, and mistrial issues. The Crown conceded that there had been a breach of the Crown’s disclosure obligations and went on to explain why it had not caused any prejudice to Mr. Land. The Crown submitted that there had been no breach of the rule in Browne and Dunn and, if any such breach were found, it could be remedied through recalling Mr. Land. The Crown sought a mistrial on the basis of the trial being unfair and having the appearance of being unfair because: (1) Defence counsel had misled the court and Crown counsel that intent was the only issue; (2) rulings on pre-trial motions were premised on intent being the only issue; (3) the jury had been advised that intent was the only issue; (4) the first 18 Crown witnesses had testified before Defence counsel advised that the issue of who had wielded the sword was a live issue; and (5) Defence counsel had misled the court and Crown counsel as to the true state of affairs regarding their relationship with Mr. St-Cyr.

[20] During submissions, I was provided with additional materials, consisting of Crown counsel’s memorandum in response to the questions I had raised on Friday regarding disclosure. I reviewed that memorandum and advised Crown counsel that I accepted his explanation and did not impute any intentional misconduct to him in regard to the disclosure and Browne and Dunn issues. I suggested that, in the future, should such circumstances arise, the document upon which the offending question is premised should be shown to Defence counsel before the question is posed so as to meet disclosure requirements. Then the direction of the court should be sought in regard to any issues arising under Browne and Dunn before, instead of after, the offending question is asked. In that Crown and Defence counsel both advised that neither was seeking any remedy from the court in regard to any disclosure or Browne and Dunn issues, the only issue left outstanding was the Crown’s application for a mistrial.

Crown’s Application for a Mistrial

[21] The grounds for the Crown’s application were briefly outlined on Monday, November 5^th^ and then expanded upon on November 8^th^, once the jury was deliberating. Crown counsel argued that, had the court been aware that Defence counsel had interviewed Mr. St-Cyr, the court would not have granted the Defence the right to cross-examine Mr. St-Cyr. Further, Crown counsel submitted that, allowing Defence counsel the right to cross-examine Mr. St-Cyr, someone who turned out to be a friendly witness, resulted in insurmountable prejudice to the Crown. It took away the Crown’s right to explore potential avenues of cross-examination. It caused irreparable harm to the truth-seeking process. It undermined actual trial fairness and undermined the appearance of trial fairness. Of particular concern to the Crown was the way in which it came about that Defence counsel was given permission to cross-examine Mr. St-Cyr.

[22] In addition to the Crown’s initial materials, transcript references, and case law, I was provided with a document entitled “Addendum to Crown Précis on Mistrial Application”. This document (not attributed to any particular author) was an aggressive attack on the integrity of Defence counsel and included numerous allegations of intentional professional misconduct. Again, understandably, Defence counsel felt the need to retain outside counsel to represent them to the extent that their behaviour became the subject of the court’s inquiry.

[23] When the application was argued on the evening of November 8^th^, after the jury had been charged, I advised counsel that, due to the obvious time constraints of having a jury deliberating and of wanting to deal with the application before they returned with a verdict, my concern was to focus on the ultimate question of whether irreparable harm had been done to the trial process so as to justify the granting of a mistrial because no other remedy would be adequate (See R. v. Paterson (1998), 1998 CanLII 14969 (BC CA), 102 B.C.A.C. 200, 122 C.C.C. (3d) 254 at para. 93 (C.A.)). Thus, my concern was less with the reason for the creation of potential prejudice and more with the question of what prejudice had actually occurred. Any misconduct on the part of Defence counsel could be addressed subsequently.

[24] Crown counsel was invited to highlight what prejudice would have occurred as a result of Defence counsel being given the right to cross-examine Mr. St-Cyr. Crown counsel had difficulty identifying individual instances of prejudice and, instead, focused on more general concerns about how integral it is to the truth-seeking purpose of the adversarial system that counsel not be able to cross-examine “friendly” witnesses (See R. v. Clancey, [1992] O.J. No. 3968 (Gen. Div.)).

[25] A review of the transcript shows that Defence counsel asked leading questions in regard to the following topics:

• The financial arrangements between Mr. Doyon, Mr. St-Cyr, and Mr. Land – none of which was particularly pertinent, aside from possibly giving Mr. Land a further motive to dislike Mr. Doyon;
• Mr. Land’s hours of work and times at the apartment – an issue of relevance to Mr. Land’s opportunity to witness Mr. Doyon and Ms. G-M. on earlier occasions;
• The timing of the incident at Stars Palace and whether Mr. St-Cyr had punched either of Mr. Doyon or Mr. Land, but not the circumstances of it or what happened between Mr. Doyon and Mr. Land – which was the more significant part of the evidence in that, again, it went to motive;
• Mr. Doyon using Mr. St-Cyr’s computer;
• When Mr. Land first spoke to Mr. Doyon about his relationship with Ms. G-M. This was important evidence;
• That Mr. Land was receiving all of his information about the relationship between Mr. Doyon and Ms. G-M. from Mr. St-Cyr. This was important evidence;
• Mr. St-Cyr’s interview with Detective McIntosh. This was important evidence; and
• The Agreed Statement of Facts signed by Mr. St-Cyr in terms of what was truthful, what was not, and what Mr. St-Cyr had no knowledge of. This was important evidence.

[26] Non-leading questions were generally used in regard to some topics that were significant from both the Crown and Defence perspectives:

• Mr. St-Cyr’s knowledge regarding the relationship between Mr. Doyon and Ms. G-M.;
• What Mr. St-Cyr did over the afternoon of May 4, 2012;
• How Mr. Land reacted when he arrived home that evening; and
• What clothes Mr. St-Cyr was wearing that evening.

[27] The most critical part of Mr. St-Cyr’s evidence was what happened in the living room at the time of the attack on Mr. Doyon. That evidence was introduced by Mr. St-Cyr saying that not everything that he said in his statement to Detective McIntosh was true. When invited to point out those aspects that were not true, Mr. St-Cyr stated that it was true that he had seen the sword in Mr. Land’s hand, but it was not true that he had seen him making stabbing motions. He said that was not how it had happened. Defence counsel interjected with the very leading question: “You’re actually the one who stabbed Mr. Doyon, aren’t you, Mr. St-Cyr?” Mr. St-Cyr then went on in his own words to describe the events of that evening that led to Mr. Doyon’s death, and what Mr. Land and he had done immediately thereafter. He described how he had taken the sword from Mr. Land’s hand and had stabbed Mr. Doyon twice in the torso. During this description, there were some leading questions interjected here and there – most notably in regard to how Mr. St-Cyr was feeling while the attack was underway – but, for the most part, Mr. St-Cyr simply told his story. He was cross-examined extensively on that story.

[28] Crown counsel explained that, one reason why he could not identify actual prejudice flowing from the leading nature of questions was that he did not doubt that, had no leading questions been asked as to who played what role during the attack on Mr. Doyon, Mr. St-Cyr would still have told basically the same story. The chief concern of Crown counsel was that, without Mr. St-Cyr being required to tell his story in his own words from beginning to end, it was impossible to say what avenues of cross-examination would have been open to the Crown that were precluded due to the leading nature of the questions posed by Defence counsel. Crown counsel expressed his concerns quite eloquently as follows:

... it’s so antithetical to the fundamental precepts of the adversarial system where the rules exist because this entire process is supposed to be an engine for truth, and the rules regarding examination and cross-examination and re-examination in the context of an adversarial system exist because we have confidence that they are an effective engine for truth.

And to obtain the permission sought to cross-examine their own witness in the way that they did, and then to put him up there and, I submit, have him give evidence that pretty obviously thwarted or inhibited the search for truth, is supposed to be engaged in through the process and the normal rules of evidence, resulted in an insurmountable prejudice to the Crown’s ... interest, but more broadly, the interest in having an effective engine that searches for the truth ...

[29] There is no question that, during submissions as to whether the Defence should have the opportunity to cross-examine Mr. St-Cyr, Defence counsel should have advised the court and Crown counsel that Defence counsel had actually met with Mr. St-Cyr on the morning of October 15^th^. Clearly this was relevant information that Crown counsel was entitled to know to fully respond to the motion and that the court was entitled to know before having to rule on the issue. When Defence counsel was making submissions on the motion to cross-examine Mr. St-Cyr, there were several points when reference to the interview would have flowed logically from what was being submitted. Ultimately, Defence counsel explained that no reference had been made to the interview because, in substance, it had not provided Defence counsel with any confidence as to what Mr. St-Cyr would actually say in the witness box, and the basis for seeking the right to cross-examine was the lack of predictability as to what Mr. St-Cyr’s evidence would be. Having observed Mr. St-Cyr testifying over two and a half days, I have no difficulty accepting such a proposition.

[30] That being said, it showed poor judgment on the part of Defence counsel not to advise the court and Crown counsel that the interview had occurred. When seeking extraordinary remedies from the court, counsel must be totally frank and candid about the circumstances being relied on for such remedies. Although I accept Defence counsel’s assertion that they did not intentionally mislead the court or Crown counsel as to whether they had had the opportunity to speak with Mr. St-Cyr, the effect of the wording of Defence counsel’s submissions during the motion for permission to cross-examine had that effect.

[31] The ruling I made on October 23, 2012, was made on the basis of an incorrect premise – that Defence counsel had no idea what Mr. St. Cyr would say once in the witness box. In that Mr. St-Cyr had willingly met with Defence counsel on October 15^th^ and had told Defence counsel his “truth” about what happened on May 4, 2009, it could not be said that Defence counsel had no idea as to what Mr. St-Cyr would say when testifying. Had that information been provided prior to making my ruling, I would not have given Defence counsel the right to cross-examine Mr. St-Cyr at large, without inquiring further as to why such an extraordinary right was required. I surmise that the Defence’s response would have been that they could not predict with any confidence what Mr. St-Cyr would say once in the witness box, despite having spoken to him. My response to that would likely have been that the Defence would have to call Mr. St-Cyr in the normal fashion and, if the testimony provided was adverse to Mr. Land’s interests or if Mr. St-Cyr proved to be hostile, their application to cross-examine him could be renewed. At that juncture, the application would likely have been granted for all of the reasons set out in my original ruling.

[32] The only evidence I had when I ruled on the Crown’s application for a mistrial on November 9^th^ was that Defence counsel had had a brief interview with Mr. St-Cyr, at which time, according to Mr. St-Cyr, he told her truthfully what had happened. The extent to which Defence counsel still could not predict with any confidence what Mr. St-Cyr would say in the witness box was not explored before I ruled on the mistrial because, in the context of this case, considering everything that had happened to date, I concluded that any prejudice to the Crown’s case, to the fair trial process, and to the appearance of fairness in the trial process was not so significant as to demand a mistrial at this stage in the proceedings.

[33] In contemplating whether there has been “a fatal wounding of the trial process”, “a wounding to the administration of justice which [could not] be cured by remedial measures” (Paterson, supra, at para. 93), there were many factors which led to my conclusion that this was not one of the clearest cases calling for a mistrial. Some of those considerations were the following:

• Mr. St-Cyr was one of 31 witnesses who testified at this trial and, although an important witness, his testimony, as given, had just as much potential to bolster the Crown’s case as it did to corroborate Mr. Land’s story.
• The forensic evidence in this case was very strong and persuasive and presented an almost insurmountable case against Mr. Land, regardless of what any other witnesses had to say.
• A number of incidents had occurred during the course of the trial, in the presence of the jury, which had the potential of causing Mr. Land prejudice. Those have been referred to above.
• Were it not for the Regional Detention Centre having failed to produce Mr. St-Cyr on the morning of October 12, 2012, Mr. St-Cyr would have been called by the Crown, and the Defence would have had the right to cross-examine him. Thus, it was through a totally unexpected turn of events, unrelated to the trial, that Mr. St-Cyr did not testify as a Crown witness.
• The Crown already had the benefit of two previous statements of Mr. St-Cyr in which he had identified Mr. Land as the stabber. The first was the result of very leading questions on behalf of a police officer. The second was as a result of a plea bargain in which the same Crown counsel participated. The Crown had ample ammunition with which to cross-examine Mr. St-Cyr. They used that ammunition to great effect.
• Crown counsel cross-examined Mr. St-Cyr for a day and a half and did significant damage to his credibility. During that cross-examination, Crown counsel was able to portray Mr. St-Cyr as an arrogant, callous liar who would say anything for any purpose.
• In the course of that cross-examination, Crown counsel used inflammatory language (such as calling Mr. St-Cyr cowardly) that he would never have been allowed to use with his own witness, even with favourable rulings under s. 9 of the Canada Evidence Act or under the rules relating to hostile witnesses. Crown counsel effectively challenged Mr. St-Cyr’s general credibility and character. This could not help but rub off on Mr. Land.
• At the end of his cross-examination, Crown counsel put the question to Mr. St-Cyr that relied on the Gladue Report that had not been disclosed to the Defence. As well, the question breached the rule in Browne and Dunn. Coming right at the end of Mr. St-Cyr’s stormy cross-examination, this question resulted in prejudice to the Defence through undermining the credibility of Mr. Land – even though the question was objected to and ruled inappropriate.
• In his closing address to the jury on the afternoon of November 7^th^, Crown counsel used strong language which included: “a merciless, deadly, one-sided attack”, “a vicious and sustained attack”, “horrible, unfair, vicious”, “shameful”, “bald-face lies”, “rotten at the core”, and “totally absurd”. At the same time as this language was being used, pictures of the deceased, as initially found by the police officers, were shown on the large screen and individual computer screens used in the courtroom. The Crown’s closing address was powerful and effective.
• Most importantly, in his closing address, Crown counsel resorted to self-help and made the following comments:

The accounts of both accused are disproved by the forensic evidence, they are inconsistent with each other, despite the obvious fact that they have colluded with one another, and even internally, they’re consistent within their own accounts. When we look at those accounts, critically, they’re revealed for what they are, which are blatant attempts to distort the evidence in Mr. Land’s favour and prevent you, the fact-finders, from fulfilling your own sworn duties and to return a true verdict. (page 3304 of the Transcript) [Emphasis added.]

What he wasn’t doing precisely, he was - he was certainly being asked questions in-chief by Ms. Weinstein, and during the time that he was being asked questions, at the first instance, we were all of the view that they had never met, and it was only until a little later on in my cross-examination that we found out that Mr. St-Cyr did in fact meet with defence counsel. And there’s nothing there’s no difficulty with that, but it explains how his answers were given and the manner in which they were given, and he certainly appeared by all accounts to be very friendly to the defence position, and that’s my submission to you. (page 3351 of the Transcript) [Emphasis added.]

[34] At the conclusion of the Crown’s closing address, Defence counsel, quite understandably, raised concerns about these two paragraphs, along with other concerns about evidence that had been misstated and the general inflammatory nature of some of the language used. I made it clear that, in my view, the comments made by Crown counsel in the above two quoted paragraphs crossed the line of what was appropriate in an address to the jury. They referred to matters that were the subject of motions being dealt with in the absence of the jury. They imputed bad faith and professional misconduct, if not contempt of court, to Defence counsel. The comments had the potential of causing enormous prejudice to Mr. Land not only by challenging the credibility of himself and Mr. St-Cyr – something that could certainly be done legitimately – but also by undermining the integrity of Defence counsel.

[35] Court resumed at 9 a.m. on November 8^th^ so that this issue, and others, could be discussed prior to my proceeding with my charge, scheduled for 10 a.m. I anticipated being met with a Defence application for a mistrial. Defence counsel advised that no such application would be brought, as the Defence simply wanted the case decided by the jury. I invited counsel to suggest what, if anything, I needed to add to my jury charge in an attempt to remedy any matters which could mislead the jury, prejudice Mr. Land’s fair trial rights, or prejudice the trial process itself and the perception of fairness between the parties. In the end, I added in special instructions regarding the following:

• The sole issue the jury had to decide was whether the Crown had proven the requisite mental state for murder beyond a reasonable doubt.
• There were no defences about which the jury needed to make a decision, such as intoxication, provocation, or self-defence. (A significant portion of the charge did relate to the rolled-up provision regarding mental state and the evidence that related to it.)
• There is no property right in a witness. Witnesses do not need to consent to be a witness. Any witness who is subpoenaed is obliged to attend court and testify. There is nothing improper with counsel interviewing their witnesses in advance of trial, even if that witness is incarcerated. There was no evidence before the court that any of the lawyers involved in the case had done anything improper during the course of their interviews with prospective witnesses.

[36] The jury was charged and, at the end of the charge, we moved right to the Crown’s application for a mistrial, as described above. In my assessment, the Crown’s application, at this stage in the proceeding, and for the reasons advanced, was unjustified. It struck me more as a retaliatory measure against Defence counsel’s earlier attack on Crown counsel – which had been quickly and unreservedly withdrawn – rather than an application arising out of true concerns about any prejudice to the Crown’s case or to the trial process itself.

[37] The timing of the mistrial application was an important factor. The jury had faithfully and attentively listened to and examined evidence over a five-week period, evidence that was difficult to listen to and to observe. The jurors were carrying on into their sixth week, without complaint, but with the anticipation that they would be put to the task of deciding the case within a few days. In my view, it required a strong likelihood of prejudice to take the case away from the jury after all of the evidence had been heard. Doing so would certainly have placed the administration of justice into disrepute.

[38] As well, any prejudice caused to the Crown’s case or to the trial process as a result of the court and Crown counsel not being told by Defence counsel that they had had the opportunity to interview Mr. St-Cyr, and by Defence counsel being given the right to cross-examine Mr. St-Cyr, was more theoretical than real. To the extent that any real prejudice existed, it was more than countered by the inappropriate passages and inflammatory language included in Crown counsel’s closing address quoted in paragraph 33 above. Any prejudice to the Crown’s case also had to be considered in the context of earlier Crown conduct that potentially prejudiced the Defence.

Disposition

[39] It was for these reasons that, on November 9, 2012, I denied the Crown’s application for a mistrial. In that the jury deliberated for less than five hours before returning a verdict of guilty of second degree murder, as charged, I daresay that my assessment that Defence counsel’s cross-examination of Mr. St-Cyr had minimal, if any, prejudicial effect on the Crown or on the trial process, was accurate.

Aitken J.

Released: November 22, 2012