COURT FILE NO.: CR-10-084
DATE: 2012-03-06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
M. A. Mousseau, P. Keen, J.R. Dewson, for the Crown
- and -
KENNETH IVALL
Chris Watkins for the Accused
Accused
HEARD: January 31, 2013,
at Kenora, Ontario
Platana J.
Reasons On Application for Mistrial
[1] In the course of this trial, defence counsel requested a mistrial. I gave short verbal reasons dismissing the application and indicated to counsel that I would provide full written reasons, which follow.
[2] Kenneth Ivall and Angela Duchene were originally charged with second degree murder for an offence alleged to been committed March 21, 2009. This trial commenced on January 8, 2013. On January 24, 2013, 3 ½ weeks into the trial, after her then counsel was appointed to the Ontario Court of Justice, Ms. Duchene entered a plea of guilty to manslaughter and she has now been sentenced.
[3] Counsel for Mr. Ivall has now brought an application for a mistrial. Filed as supporting material for this application are the following:
- Exhibit 1 - March 21, 2009 statement of Angela Duchene
- Exhibit 2 - Agreed statement of facts dated January
- Exhibit 3 - Materials dated January 21, 2013
- Exhibit 4 – Affidavit and letter
[4] The history of this matter was presented to me as the basis for this application. Counsel for Mr. Ivall acknowledges that plea discussions for Ms. Duchene have been ongoing for some time prior to trial. On the eve of trial, her counsel indicated she would plead if the Crown would agree to a joint submission to facts and sentence. The Crown did not accept a plea on that basis and the trial commenced. Ms. Duchene’s then counsel was then appointed to the Ontario Court of Justice. Ms. Duchene obtained new counsel from the same office as previous. The Crown initiated discussions with new counsel with respect to the earlier plea discussions. New counsel were from the same firm but indicated they could only act with respect to a plea, but could not continue if the matter proceeded as a trial involving Ms. Duchene.
Defence Position
[5] Mr. Watkins argues that accepting this plea at this time shows that the Crown made a strategic error at the commencement of trial, and have now accepted the co-accused’s plea solely in order to have the trial proceed against Mr. Ivall. As part of the plea arrangement with Ms. Duchene, she agreed to provide a statement of facts to the Crown. Mr. Watkins argues this now constitutes new disclosure as it differs in some respects from her earlier statement in March 2009.
[6] Further he submits that her evidence is now tainted because she has sat through 3 ½ weeks of trial and has heard the testimony of several witnesses. This, he argues, if she testifies, constitutes a breach of the exclusion of witnesses order which I made at the commencement of this trial. He points to a particular passage of her new statement where she references earlier testimony of two witnesses as having confirmed what she is now going to testify to.
[7] Mr. Watkins submits that there is additional prejudice to Mr. Ivall, as Ms. Duchene was seated next to him in the prisoners dock, and that because she was physically closely associated with him, the jury will associate her guilty plea to him.
[8] Mr. Watkins focuses on the essential argument that by accepting a guilty plea from Ms. Duchene at this point, the Crown’s sole purpose in doing so is to avoid the possibility of this trial having to be adjourned for such a lengthy period of time as to constitute a mistrial, or to prevent the issue of a s. 11(b) delay issue being raised. He points out that the sentence imposed on Ms. Duchene is, for all intent and purpose, the same as was offered by her prior to trial, and which was rejected by the Crown. His fundamental position is that the acceptance of her plea was “a deal” for the exchange of her testimony against Mr. Ivall.
[9] This he argues is a situational abuse of process. He acknowledges that it was always open for Ms. Duchene to plead guilty, however, because of the evidentiary rules involving the testimony of co-accused, the case has now changed from one of circumstantial evidence against Mr. Ivall, to one of direct testimony, assuming Ms. Duchene testifies.
[10] This new statement of Ms. Duchene, and the now potential of her testimony, gives rise to three issues on the basis of Mr. Watkins’ argument:
late disclosure
fundamental justice
the overriding power of trial management in this court
[11] With respect to the issue of late disclosure, Mr. Watkins refers me to R. v. Dixon [1988] 1 S.C.R. 244. He has noted for me only the headnote to the case which reads at pages 245-246: (1) The Crown’s Duty to Disclose
Where an accused demonstrates a reasonable possibility that the undisclosed information could have been used in meeting the case for the Crown, advancing a defence or otherwise making a decision which could have affected the conduct of the defence, he or she has also established the impairment of his or her Charter right to disclosure. The right to disclosure of all relevant material has a broad scope and includes material which may have only marginal value to the ultimate issues at trial. The Crown accordingly may fail to disclose information which meets the Stinchcombe threshold but which could not possibly affect the reliability of the result reached for the overall fairness of the trial process.
(2) Impairment of the Right to Make Full Answer and Defence and the Remedy to Be Granted under Section 24(1) of the Charter.
In order to determine whether the right to make full answer and defence was impaired, a two-step analysis must be undertaken. First, to assess the reliability of the result, the undisclosed information must be examined to determine the impact it might have had on the decision to convict. If an appellate court is persuaded that there is a reasonable possibility that, on its face, the undisclosed information affects the reliability of the conviction, a new trial should be ordered. Even if the undisclosed information does not itself affect the reliability of the result at trial, the effect of the non-disclosure on the overall fairness of the trial process must be considered at the second state of analysis. This will be done by assessing, on the basis of a reasonable possibility, the lines of inquiry with witnesses or the opportunities to garner additional evidence that could have been available to the defence if the relevant information had been disclosed.
[12] Mr. Watkins submits that there has been an impairment of Mr. Ivall’s Charter rights by way of a fundamental failure to disclose that Ms. Duchene would testify. He submits that it is not the change per se but the reason for the change, and particularly, why the Crown has now accepted a plea from Ms. Duchene when they did not accept essentially the same plea and joint submissions on sentence that they could have accepted prior to commencement of the trial. He refers me to the decision of R. v. Stinchcombe 1991 45 (SCC), [1991] 3 S.C.R. 326, at para. 11, where the court cites R. v. Boucher 1954 3 (SCC), [1955] S.C.R. 16:
It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.
[13] Mr. Watkins submits that this is the basis of his argument in terms of procedural fairness and fundamental justice. He references para. 22 of Stinchcombe where the court states:
The trial judge on a review should be guided by the general principle that information ought not to be withheld if there is a reasonable possibility that the withholding of information will impair the right of the accused to make full answer and defence...
[14] Mr. Watkins has also relied on the decision in Houston v. Kine, BCCA 358, [2011] B.C.J. No. 1611, a civil case in which the B.C. Court of Appeal, in circumstances where video surveillance was not disclosed until during the trail, stated at para. 16:
While assessing the prejudice and the probative value of the Mexico video may have been more difficult without reviewing the video, a finding of prejudice is not necessary in order to justify the exclusion of evidence where no satisfactory reason has been offered for the late disclosure.
[15] In addition to what he submits is the late disclosure, Mr. Watkins has also argued that in her opening address to the jury Crown counsel spoke of this being a circumstantial case. Mr. Watkins suggests that this is now a misleading statement as they will now hear direct evidence if Ms. Duchene testifies. What he seems to be arguing is that the Crown had an obligation in her opening to state the substance of the evidence which the Crown proposed to adduce and the effect on the case. That has now changed if Ms. Duchene now gives direct evidence as to Mr. Ivall’s involvement.
[16] In the event that I do not grant a mistrial, Mr. Watkins asks me to exclude evidence of Ms. Duchene. He repeats that the issue is one of trial fairness. He has focused primarily on the fact that plea discussions following appointment of new counsel were initiated by the Crown. He agrees that there would be no issue of a mistrial if Ms. Duchene had been able to continue this trial with previous counsel, and she had determined to change her plea.
CROWN POSITION
[17] Mr. Keen began his submission by referencing the Ontario Court of Appeal decision in R. v. Toutissani, 2007 ONCA 773, [2007] O.J. No. 4364 (Ont. C.A.) where the court stated at para. 9:
Third, I explicitly endorse the application judge’s statement that “the declaration of a mistrial, like the declaration of a stay, should be granted only as a last resort in the clearest of cases and where no remedy short of that relief will adequately redress the actual harm occasioned.
[18] Further, in R. v. Chiasson, 2009 ONCA 789, [2009] O.J. No. 4682 (Ont. C.A.) at para.h 14 where the Court of Appeal stated:
A mistrial is appropriate where that remedy is necessary to prevent a miscarriage of justice: R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857 (S.C.C.) at para. 75. Other less extreme remedies, such as an appropriate mid-trial instruction, should be considered and rejected as inadequate before a mistrial is granted: R. v. Toutissani, 2007 ONCA 773, [2007] O.J. No. 4364 (Ont. C.A.). The determination of whether a mistrial should be granted is ultimately a matter in the discretion of the trial judge. As with other discretionary decisions, this court will not interfere with the decision of the trial judge except where the court concludes it is clearly wrong or based on some erroneous principle.
[19] In a similar authority Mr. Keen references the Supreme Court of Canada decision in R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857 (S.C.C.) at para. 75 where the court stated:
In declaring a mistrial, the trial judge therefore turns his or her mind to the question of whether a mistrial is needed to prevent a miscarriage of justice. This determination will necessarily involve an examination of the surrounding circumstances. Injustice to the accused is of particular concern, given that the state with all its resources acts as the singular antagonist of the individual accused in a criminal case. This factor should be balanced against other relevant factors, such as the seriousness of the offence, protection of the public and bringing the guilty to justice. It may be fitting to allow the announced verdict to stand where the period the accused has been at liberty and under the mistaken impression that he or she had been acquitted has been lengthy, and where the charge is not so egregious as to bring the administration of justice into disrepute. As has already been stated, the trial judge is in the best position to assess the circumstances of each individual case and select the most appropriate remedy.
[20] In responding to Mr. Watkins’ argument that permitting this trial to proceed now against Mr. Ivall is an abuse of process, Mr. Keen references the Supreme Court of Canada decision in R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, where at paragraphs 49 to 52 the court referred to the seminal discussion of abuse of process as found in R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411. In paras. 50 to 52, Justice LeBel wrote:
In an earlier judgment, McLachlin, J. (as she then was) expressed it this way:
...abuse of process may be established where: (1) the proceedings are oppressive or vexatious; and, (2) violate the fundamental principles of justice underlying the community’s sense of fair play and decency. The concepts of oppressiveness and vexatiousness underline the interest of the accused in a fair trial. But the doctrine evokes as well the public interest in a fair and just trial process and the proper administration of justice. I add that I would read these criteria cumulatively. (R. v. Scott, 1990 27 (SCC), [1990] 3 S.C.R. 979 at p. 1007)
Finally, this Court’s most recent consideration of the concept of abuse of process arose in the administrative context. In Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44, it was held that a 30-month delay in processing a sexual harassment complaint through the British Columbia human rights system was not an abuse of process causing unfairness to the alleged harasser. For the majority, Bastarache J. came to this decision on the basis that abuse of process has a necessary causal element: the abuse “must have caused actual prejudice of such magnitude that the public’s sense of decency and fairness is affected” (para. 133). In Blencoe’s case, it was held that the humiliation, job loss and clinical depression which he suffered did not flow primarily from the delay, but from the complaint itself, and the publicity surrounding it (Blencoe, at para. 133; see also United States of America v. Cobb, [2001] 1 S.C.R. 587, 2001 SCC 19).
[21] Mr. Keen notes that there is always a possibility that a co-accused may elect to plead guilty, at any point, in any criminal proceeding. He notes that the widely-used criminal jury charges include specific warnings to a jury as to what limited use they make of a guilty plea of one co-accused. He references R. v. McKee, 1960 509 (ON CA), [1960] O.J. No. 22, 126 C.C.C. 251 (Ont. C.A.) where a co-accused charged with murder towards the end of the Crown’s case pled guilty to manslaughter and then testified as a Crown witness and the evidence undoubtedly fortified the Crown’s case against the other co-accused. At para. 7 the Court of Appeal stated:
In Rex v. Wilfred Tomey, (1909) 2 Cr. App. Rep. 329, it was held by the Court of Criminal Appeal in England that a co-accused who has pleaded not guilty may be allowed in the course of a joint trial before a jury to plead guilty and may then be sentenced and called as a witness against the remaining accused before the same jury. Counsel for the appellant contended that that case is distinguishable from the case at bar on the ground that there the prisoner who offered the plea had pleaded guilty to the same offence rather than to a lesser offence as in the present case. We do not think that this is a real point of distinction which prevents the application of the general principle applied in the Tomey case and in many other cases. The learned trial judge, in our opinion, correctly rejected the applications for separate trials and the discharge of the jury.
[22] In R. v. T. (L.A.) 1993 3382 (ON CA), [1993] O.J. No. 1605, 84 C.C.C. (3d) 90 (Ont. C.A.) the court at para. 8 stated that “[t]he proper test on an application for a mistrial is, of course, whether the appellant’s ability to make full answer and defence has been impaired.”
[23] Mr. Keen cites R. v. Denda, [1986] O.J. NO. 998 (Ont. C.A.), where a mistrial was granted, but not on the basis of a plea by a co-accused before the panel from which a jury was to be selected, but because the trial judge failed to caution the jury properly, and also because the trial judge did not allow an appropriate adjournment to allow counsel to prepare for cross-examination of the co-accused.
[24] He cites R. v. Boka [1974] J.Q. No. 87 (Que.C.A.) as authority that a jury should be presumed to be capable of being the judges of law, presuming that appropriate instructions are given in the case of a guilty plea by a co-accused. Further a jury need not be kept in ignorance of such a circumstance. The Crown also references the decision in R. v. Blackmon, [2007] B.C.J. No 2397 (B.C. S.C.); R. v Buchanan [1996] A.J. No. 933 (Alta C.A.) and R. v. Rowbatham (No. 1) [1976] O.J. No. 1660 (Ont. Co. Ct.), as authorities that a fact-finder may proceed with hearing a trial against an accused having heard guilty pleas from one or more co-accused.
[25] In response to Mr. Watkins’ argument that a significant issue arises in this case because of the change of counsel, followed by a next day plea, Mr. Keen cites R. v. Swain [1991] 1. S.C.R. 933 as authority that as a principal of fundamental justice, an accused person is always able to make fundamental decisions about his or her defence. As noted in para. 36:
An accused person has control over the decision of whether to have counsel, whether to testify on his or her own behalf, and what witnesses to call. This is a reflection of our society’s traditional respect for individual autonomy within an adversarial system.
[26] Mr. Keen acknowledges that the defence approach may be somewhat different as there is now the possibility of direct evidence, however, he submits that this does not constitute prejudice within the meaning of case law. He refers me to R. v. Bjellard, 2009 SCC 38, [2009] 2 S.C.R. 651 (S.C.C.), a case dealing with the issue of when the exclusion of evidence will be an appropriate remedy under S. 24(1) of the Charter for late disclosure by the Crown at para. 26:
This statement recognized that the appropriate focus in most cases of late or insufficient disclosure under s. 24(1) is the remediation of prejudice to the accused, but that safeguarding of the integrity of the justice system will also be a relevant concern. Of course the prejudice complained of must be material and not trivial. For example, the exclusion of evidence may be warranted where the evidence is produced mid-trial after important and irrevocable decisions about the defence have been made by the accused. Even then, it is for the accused to demonstrate how the late disclosed evidence would have affected the decisions that were made. For purposes of trial fairness, only where prejudice cannot be remedied by an adjournment and disclosure order will exclusion of evidence be an appropriate and just remedy.
[27] He also references R. v. L.B. 1997 3187 (ON CA), [1997] O.J. No. 3042 (Ont. C.A.), a case which dealt with similar fact evidence, but in which the Court of Appeal commented on the meaning of “prejudice” in the context of distinguishing between discreditable conduct and other conduct which does not discredit an accused stated at para. 22:
It is important to define what is meant by prejudice in this context. In its widest sense, any evidence that tends to prove guilt can be said to be prejudicial to the accused since it is detrimental to his or her position. Obviously that is not the kind of prejudice that calls for special evidentiary rules. Professor Delisle defines the meaning of prejudice in this context succinctly as follows:
Prejudice in this context, of course, does not mean that the evidence might increase the chances of conviction but rather that the evidence might be improperly used by the trier of fact. It is one thing for evidence to operate unfortunately for an accused but it is quite another matter for the evidence to operate unfairly. The trier who learns of the accused’s previous misconduct may view the accused as a bad man, one who deserves punishment regardless of his guilt of the instant offence and may be less critical of the evidence presently marshalled against him.
[28] Mr. Keen specifically argues in response to the defence argument that his defence may have become more difficult, but he has not suffered any prejudice. Indeed, Mr. Keen submits that any changes in Ms. Duchene’s position, and in any evidence she may give, will be helpful to Mr. Ivall in terms of cross-examination. He responds to Mr. Watkins argument of prejudice because of Ms. Duchene now having heard the evidence of other witnesses, by noting that Ms. Duchene has had access to all disclosure in this case, and has already sat through a lengthy preliminary. He responds to a suggestion of prejudice in the Crown’s opening by denying that it was unfair or prejudicial, and in fact mentioned nothing of what Ms. Duchene would say at trial, if she testified, or what she may have said in any statement.
[29] Mr. Keen submits that Ms. Duchene’s position throughout all of her statements has not changed. She originally said she tried to stop Mr. Ivall, that her statement to police described actions of Mr. Ivall, and that has not changed. Mr. Keen submits that the reality is that Mr. Ivall always had to approach his defence with the possibility in mind that Ms. Duchene might testify.
[30] In response to Mr. Watkins’ submissions that he would have questioned witnesses differently and therefore his defence has been prejudiced in that way, he reference me to R. v. Dixon, 1998 805 (SCC), [1998] 1 S.C.R. 244, where the Supreme Court of Canada dealt with circumstances where statements of four witnesses had not been produced by the Crown. He argues that it is not enough for defence to generally state witnesses would have been questioned differently, but that the accused must demonstrate that questioning witnesses differently might affect the reliability of their evidence in terms of the accused, and that it has affected the fairness of the trial. Mr. Keen cites R. v. Blackmon [2007] B.C.J. No. 2397 (B.C. S.C.) in submitting that there is no evidence before me as to how questioning could have been different such as to affect Mr. Ivall’s right to a fair trial. He submits that absence any evidence that any witness’ evidence would have been different, I cannot speculate.
[31] As to the request by Mr. Watkins to exclude evidence to be given by Ms. Duchene, Crown references R. v. Blair, [2007] M.J. No. 86 (MB. Q.B.) at paras. 55 to 60 where the court considered that defence counsel had received disclosure of what the witness might say, and that it did not represent any change in the Crown’s case. There was no requirement to change the thrust of the defence’s position, and that it did not add any major new dimension to evidence already received from other witnesses.
[32] As to Mr. Watkins’ argument with respect to my trial management power, Mr. Keen references also R. v. Spackman, 2012 ONCA 905, [2012] O.J. No 6127 (Ont. C.A.) where the Court of Appeal stated at paras. 104 and 113:
Exclusion of Evidence under the Trial Management Power
104 Trial judges have an expansive, but not unbounded authority to manage the conduct of criminal trial proceedings to promote the efficient use of court time and to ensure fair treatment of all parties involved in the proceedings: R. v. Felderhof (2003), 2003 37346 (ON CA), 180 C.C.C. (3d) 498 (Ont. C.A.), at paras. 37 and 57. However, excluding relevant, material, and otherwise admissible evidence under the trial management power is an unusual exercise of that power. Evidentiary exclusion should be reserved for cases in which it is plain and obvious that the circumstances require evidentiary exclusion and that the usual remedies, like a brief adjournment, will not be adequate: R. v. Horan, 2008 ONCA 589, 237 C.C.C. (3d) 514, at para. 33. …
113 Exclusion of evidence may be available as a remedy for constitutional infringement under s. 24 (1), provided exclusion is “appropriate and just in the circumstances”. Bjelland, at para. 19. As explained in Bjelland, at para. 24, exclusion of evidence is an exceptional remedy for late disclosure, confined to cases in which:
i. The late disclosure renders the trial process unfair and the unfairness cannot be remedied through an adjournment and disclosure order; or
ii. Exclusion is necessary to maintain the integrity of the justice system.
Where a trial judge can fashion an appropriate remedy for late disclosure that does not deny an accused procedural fairness and where admission of the evidence does not otherwise compromise the integrity of the criminal justice system, exclusion of evidence will not be an appropriate and just remedy under s. 24(1): Bjelland, at para. 24.
DISCUSSION
[33] A discussion of whether to grant a mistrial must begin with the principle that a plea by co-accused is always an option in any trial involving co-accused or multiple accused. Mr. Watkins complains of the timing of Ms. Duchene’s obtaining new counsel, and then plea discussions being initiated anew by the Crown. There is nothing in law to suggest that it is improper for the Crown to initiate discussion towards a plea at any time. In a circumstance such as this, it is appropriate for the Crown to consider the consequence of a lengthy delay for a new trial in the event Ms. Duchene had to retain new counsel, who were prepared to act on her behalf at a trial. It is clear that with the nature of this charge, a significant period of time would have been necessary first for her to obtain counsel, for that new counsel to become familiar with this case, and then to obtain a new trial date. As a judge familiar with the court schedule in this region, and taking the above factors into account, I am satisfied that there was a potential for a delay of up to a year for a new trial to be scheduled.
[34] Mr. Watkins has also argued that in framing her opening address as a case of circumstantial evidence, the Crown has misled the jury, albeit admittedly unintentionally, as to the nature of the Crown’s case, are that it has now changed significantly. I give no effect to that argument. The jury was told by me prior to the Crown opening, and by the Crown herself in the opening, that the Crown’s opening comments were not evidence, but were a synopsis of what the Crown hoped to prove.
[35] I have reviewed the past history of the plea-bargaining process which clearly reflects that this is not a last-minute plea which had not been discussed and which for Mr. Ivall came totally unexpectedly. Further, having seen what Ms. Duchene had already told the police, including her videotaped statement in March 2009, the thrust of her evidence was indicated well before this trial began.
[36] Furthermore, I have considered that Mr. Ivall is in custody, and while it is his request for a mistrial, I must consider the court’s responsibility to have matters proceed through the courts on a timely schedule. While this factor in itself is certainly not sufficient to require this trial to proceed, prejudice to the accused should be considered in the context of safeguarding the integrity of the justice system.
[37] Mr. Watkins’ fundamental and base argument is that the unfairness in this case results from the Crown initiating further plea discussions with new counsel, solely to be able to proceed with the trial against Mr. Ivall. I do not accept that argument. Firstly, the material before me demonstrates that Ms. Duchene’s entering a plea to manslaughter for an agreed sentence, or range of sentence, had been under discussion with her previous counsel long before, and up to the time this trial commenced. This is not what Mr. Watkins attempts to categorize as a ‘last minute plea in exchange for testimony’. Secondly, there is never any prohibition from a Crown after looking at all the circumstances of any charge deciding to accept a plea to an offence other than the one originally charged. Thirdly, in circumstances such as these, where a declaration of a mistrial would significantly delay the commencement of a new trial to the point where the accused would likely have been in custody for close to 5 years, the Crown has, in my view, an obligation to consider ways to have the charges dealt with as expeditiously as possible in the interests of its responsibility to the system of justice. Fourthly, Mr. Watkins has candidly, and in my view, correctly, acknowledged that, but for the change in counsel, he could raise no objection to the trial having continued against Mr. Ivall. The change in counsel, and the plea of Ms. Duchene, even if initiated by the Crown, is not sufficient for me to find any institutional abuse of process as submitted by Mr. Watkins.
[38] Mr. Watkins has framed part of his argument on the issue of late disclosure based on Ms. Duchene’s statement the Crown provided to defence on January 24th. In R. v. Dixon, the court held that an accused must demonstrate a ‘reasonable possibility’ that the undisclosed information could have been used in making the case for the Crown advancing a defence or otherwise making a decision which could have affected the outcome of the trial.
[39] To answer whether right to make full answer and defence was impaired, a three-step analysis must by undertaken:
i. Examine undisclosed evidence to determine the impact it might have on the decision to convict, and
ii. Is there a reasonable possibility that the information will affect the reliability of the conviction,
iii. Effect if does not affect the reliability of the result of trial, court should assess, on the basis of a reasonable possibility, to lines of inquiry with witnesses, or the opportunities to garner additional evidence that could have been available to the defence if the
relevant information had been disclosed.
[40] With respect to the late disclosure, I accept Mr. Keen’s argument that for practical matters, this cannot really be considered as ‘new evidence’. Disclosure was provided to both defence counsel in its entirety, including previous statements of Ms. Duchene. There has been an earlier pre-trial application before me with respect to the admissibility of her statement at trial, during which application Mr. Ivall and Mr. Watkins were present over the course of several days, seeing her statement on video, audio, and transcribed.
[41] I accept that there is now a difference in the current statement provided by her to the police as to the involvement of Mr. Ivall. However, it in no way is of such a difference, as for example, to now remove any alibi, place him at the scene where she had not placed him previously, nor does it limit her role in any significant fashion from her previous videod statement.
[42] Further, I accept Mr. Keen’s argument that by making herself subject to now being called as a witness, Ms. Duchene is subject to cross-examination as to any differences or contradictions between what she may testify to and what she has said previously. I do not consider the prejudice of her now being a potential witness to be such prejudice to Mr. Ivall or a reasonable possibility that the evidence she may now give could affect the overall fairness of the trial process.
DECISION
[43] Case law, as referenced by Mr. Keen, has consistently indicated that a mistrial should be granted only as a last resort in the clearest of cases, where no other remedy is reasonably available to prevent a miscarriage of justice. As stated by the Supreme Court in R. v. Burke, at para. 75, injustice to the accused should be balanced against other relevant factors. In this case the accused has been in pre-trial custody nearly 4 years; if a mistrial is declared, there is no realistic possibility that a trial of this length could be rescheduled until, at the very earliest, close to the end of this year.
[44] In R. v. Chiasson, 2009 ONCA 789, 258 O.A.C. 50, the Court wrote at para. 14:
A mistrial is appropriate where that remedy is necessary to prevent a miscarriage of justice: R. v. Burke 2002 SCC 55, [2002] 2 S.C.R. 857 at para. 75. Other less extreme remedies, such as an appropriate mid-trial instruction, should be considered and rejected as inadequate before a mistrial is granted: R. v. Toutissani, 2007 ONCA 773, [2007] O.J. No. 4364. The determination of whether a mistrial should be granted is ultimately a matter in the discretion of the trial judge. As with other discretionary decisions, this court will not interfere with the decision of the trial judge except where the court concludes it is clearly wrong or based on some erroneous principle. [Emphasis added]
[45] After a thorough review of the case law, Madam Justice Arbour in R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857 stated that the “common theme running through this case law is the test of whether there is a [TRANSLATION] ‘real danger’ of prejudice to the accused or danger of a miscarriage of justice.”
[46] Recently, and even more on point, is R. v. Toutissani, 2007 ONCA 733, [2007] O.J. No. 4364. At para. 9, MacPherson J.A., stated:
I explicitly endorse the application judge’s statement that “[t]he declaration of a mistrial, like the declaration of a stay, should be granted only as a last resort, in the clearest of cases and where no remedy short of that relief will adequately redress the actual harm occasioned”.
[47] I have considered all of the evidence in this case, most of which to this point in the trial has been about the beating of Mr. Wilson by a group of young men prior to the events leading to the charge against Mr. Ivall. His name and presence in the events of March 21, 2009 have been limited by other witnesses with the exception of the police in Tim Horton’s, and Ron Lalonde, Crystal McDonald (who has now been cross-examined by Mr. Watkins) and witnesses who knew Mr. Ivall, but had no evidence with respect to any incident involving him. Lisa Costa has testified, and was subjected to cross-examination. She heard Angela say “Are you going to hit me. Hit me again.” All witnesses who testified were subjected to extensive cross-examination by counsel for Ms. Duchene, and by Mr. Watkins.
[48] The principles that I have essentially followed are first to address myself to the applicable test in granting a mistrial, that is, has there been a real danger of prejudice to the accused or danger of a miscarriage of justice where no remedy short of a mistrial will adequately redress the actual harm occasioned. The decisions in Burke and Toutissani would appear to be the leading judgments in Ontario in this case.
[50] Considering those, the application for a mistrial is denied. The trial will continue. I would indicate that in the event that I am satisfied that it is established that if it becomes necessary to recall any witness for any particular aspect which is relevant to the events surrounding Mr. Ivall, I will give consideration to that at the appropriate time, and if counsel satisfies me that that evidence or that witness should be recalled, then I will consider doing so at that time. There is no automatic right to recall any particular witness until such time as it is established by defence counsel that it is necessary to ensure a fair trial.
[51] There is no basis for me to grant Mr. Watkins’ request that Ms. Duchene should be prohibited from testifying
___”original signed by”
Mr. Justice T. A. Platana
Released: March 6, 2013
COURT FILE NO.: CR-10-084
DATE: 2013-03-06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
KENNETH IVALL
Accused
REASONS ON APPLICATION FOR MISTRIAL
Platana J.
Released: March 6, 2013
/mls