ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-30000360
13-30000359
DATE: 20130611
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DAMION HAMILTON
Defendant
Tania Monteiro, for the Crown
David Smith, for the Defendant
HEARD: May 14 and 17, 2013
Ruling on Defence Applications for a Mistrial
SPIES J.
Overview
[1] At the outset of the jury trial in this matter, immediately after the Crown’s opening address, the Defence brought an application seeking a mistrial. I dismissed that application with brief oral reasons. The application was renewed on the same basis on May 17th, after the Defence called its first witness, the Forensic Identification Officer. After hearing further submissions, I dismissed the application again and advised counsel that I would provide reasons for my decision. These are my reasons for dismissing both applications.
Background
[2] Mr. Hamilton was charged with possession of a loaded restricted firearm contrary to section 95(1) of the Criminal Code and a number of offences related to the alleged possession of that firearm. Some of the charges were severed at the commencement of the trial in order to avoid prejudice with the jury. Counsel agreed that I would deal with those in accordance with the jury’s verdict.
[3] The trial, which was scheduled to last about four days, commenced on May 13, 2013 with an application by the Defence to allow Mr. Hamilton to sit at counsel table. That application and the challenge for cause/selection of the jury, took all day. The following day I gave the jury my Preliminary Instructions and the Crown made her opening statement.
[4] The theory of the Crown’s case was that when Mr. Hamilton was approached by uniformed police officers in the parking lot of a bowling alley on Eglinton Avenue East, at about 10:30 p.m. on the night of May 22, 2012, for the purpose of investigating him, he ran from police. During the course of the chase through a townhouse complex, one of the officers alleged that he observed Mr. Hamilton throw a dark object into one of the backyards of the townhouses adjacent to where they were running. After Mr. Hamilton was apprehended and arrested, the officers immediately retraced their steps and retrieved a loaded Glock handgun from the vegetable garden of that residence.
[5] During the course of her opening, Ms. Monteiro told the jury that the police had information from a confidential informant that Mr. Hamilton was going to have a gun in his possession. She advised the jury that they would not hear anything about the confidential informant and that the informant’s identity would remain confidential during the trial. She stated that for people who provide information to the police about serious offences like this, their safety is imperative and their identity needs to remain anonymous. She stated that as a result the police, and in particular Sergeant Blakely who received this information, needed to investigate Mr. Hamilton and that Sergeant Blakely then directed the investigation. Ms. Monteiro then described the surveillance operation that was set up to watch Mr. Hamilton at the Knobhill Plaza in Scarborough where the police watched him go in and out of the Oxford Pub. Ms. Monteiro said that they had information that when Mr. Hamilton was leaving the Oxford Pub he would have a gun in his possession. She then described how the officers approached and then chased and ultimately arrested Mr. Hamilton after he left the pub.
The First Application for a Mistrial
[6] After Ms. Monteiro completed her opening statement, Mr. Smith said he was concerned about the statements she made about the confidential informant and information alleged to have come from that informant, which he submitted was hugely prejudicial to Mr. Hamilton. He argued that essentially what the Crown was able to do was to have a witness before the court who provided hearsay information to the officer that Mr. Hamilton had a gun and that witness could not be cross-examined.
[7] Although I understand that Ms. Monteiro’s comments had come as a surprise, as Mr. Smith advanced his arguments, he submitted that this information was investigative hearsay and was only admissible if and when the Defence alleged the police did an insufficient investigation which had not been alleged in this case. He was concerned that the jury would hear very detailed information about this tip. Mr. Smith submitted that this evidence was more than narrative and ultimately advised that he was asking for a mistrial.
[8] During the course of my discussion with counsel about Mr. Smith’s concerns, I asked Ms. Monteiro what evidence she intended to illicit from the officers. She took the position that this information was admissible as part of the narrative in order to explain why Sergeant Blakely had detailed her officers to surveill Mr. Hamilton. It was Ms. Monteiro’s position that the fact a firearms investigation began due to information received from a confidential source, including what that information was, was relevant and admissible evidence and not caught by the rule excluding investigative hearsay. From the Crown’s perspective it was important that the jury not be left with the impression that the police were targeting young black males without reason. Mr. Smith’s response was that all that was needed was that the police entered into a firearms investigation and that was the reason the surveillance was set up.
[9] The issue for the court was whether or not to declare a mistrial. At this stage the comments that were objected to had been made by counsel in her opening address. The jury had been told more than once, during the course of my Preliminary Instructions, given just minutes earlier, that what counsel said was not evidence and specifically told that what counsel said during her opening address was not evidence.
[10] Although in my view there was some merit to Ms. Monteiro’s position, she could have made this point by simply advising the jury that as a result of information received the police initiated an investigation of Mr. Hamilton. Some of her comments about the confidential informant were improper in my view and I agree with Mr. Smith that she ought to have raised this issue with the court before the trial commenced. Had she done so I could have ruled on the issue before any information was provided to the jury.
[11] At this stage Ms. Monteiro was about to call Sergeant Blakely and so I ascertained what evidence she intended to elicit from her about this confidential informant. During the course of this discussion with counsel Mr. Smith referred to R. v. Zammit, 1993 3424 (ON CA), [1993] O.J. No. 881 (Ont. C.A.) at para. 23 for the proposition that in the context of a tip from a confidential source sufficient information must be revealed to justify the granting of a search warrant or to justify a warrantless search on the basis of reasonable and probable grounds. He submitted that by analogy this meant that by just stating that “we had a tip” the jury would presume that the tip was accurate. However, in my view the jury would have no knowledge of the law in this regard and Ms. Monteiro had agreed that she would not ask Sergeant Blakely about any vetting that she did of the reliability of the confidential informant. I suggested that in addition I could specifically instruct the jury that the Defence had not been able to test the reliability of the information from the confidential source. Ms. Monteiro accepted that limitation. Mr. Smith asked for time to reflect on this suggestion and did not later object to the inclusion of this statement in the limiting instructions I gave the jury.
[12] I should state at this point that since the application brought by Mr. Hamilton to be heard at the commencement of the trial seeking an order excluding the evidence, and in particular the handgun, pursuant to sections 8, 9 and 24(2) of the Charter, was abandoned, I had no information as to the reliability of the confidential source but determined it would not be appropriate for the jury to hear about that when Sergeant Blakely testified.
[13] After considering Mr. Smith’s submissions and given the fact that Ms. Monteiro was amenable to limiting the evidence she elicited from Sergeant Blakely, I concluded that by limiting the evidence of Sergeant Blakely on the subject, it was not necessary to declare a mistrial and that the issue could be addressed by a limiting instruction given before Sergeant Blakely testified, which would alleviate any prejudice to Mr. Hamilton.
[14] Three questions to deal with this topic were discussed with counsel and to be sure there was no issue I instructed Ms. Monteiro to ask the questions of Sergeant Blakely in a leading fashion. Although Mr. Smith naturally maintained his objection, he was given an opportunity and did comment on the questions that I determined would be permitted of Sergeant Blakely.
[15] Once I decided to give a limiting instruction, I reviewed that instruction in draft with counsel and I took into account their comments and ultimately the instruction provided was one they were both content with although, of course, Mr. Smith maintained his objection.
[16] The jury was brought back and before Sergeant Blakely was called I gave a midtrial instruction as follows:
As I told you during my preliminary instructions, what the lawyers say is not evidence. However, since Ms. Monteiro told you about what she expects the evidence to be I want to give you some instructions now about what I expect you will hear from the Crown’s first witness, Sergeant Blakely. I expect Sergeant Blakely will tell you that she received information from a confidential source and that is why she arranged for the surveillance of Mr. Hamilton. You will not hear from this person because as Ms. Monteiro said, his or her identity is kept confidential. This means Mr. Smith and Mr. Hamilton do not know who this person is and have no way to test the reliability of whatever information this person may have had. What is important for you to know is that this evidence about the confidential source is hearsay evidence. You cannot rely on that evidence against Mr. Hamilton. You will hear this evidence only in order to explain why Sergeant Blakely took the steps she did. The information she received and acted upon is not evidence against Mr. Hamilton.
[17] Sergeant Blakely was then called and asked the questions agreed upon by Ms. Monteiro. She testified that on May 22, 2012 she initiated a firearms investigation on the basis of information from a confidential source and as a result of this information she directed her officers to conduct surveillance of Mr. Hamilton at the Oxford Pub in the Knobhill Plaza at Brimley and Eglinton in Scarborough. No other information was given by Sergeant Blakely about why she commenced the investigation in her evidence in chief.
[18] Sergeant Blakely testified that although she was part of the surveillance team she was not in a position to watch Mr. Hamilton. She said that Mr. Hamilton was arrested between 10:32 and 10:35 p.m. and that she found out a gun was involved at 10:35 p.m., the same time as his arrest.
[19] Shortly after the end of the evidence of Sergeant Blakely, a question was received from one of the jurors which read as follows:
Initially we were told that this was a firearms investigation. That the confidential informant had given information that Mr. Hamilton was to receive a firearm and that was the purpose of the surveillance.
But Sergeant Blakely testified that she heard about the gun at the time of the arrest. Was that a misunderstanding of the evidence given, or was the initial purpose of the surveillance something other than firearms?
[20] Mr. Smith argued that this question demonstrated that the jury was confused, that the limiting instruction had not had its intended effect and that this juror was concerned about what the confidential source had said. I did not accept that submission. Although the first part of the question from this juror was a reference in part on information set out by the Crown in her opening statement, the juror’s question did not suggest that he misunderstood this to be evidence. The thrust of the question was that the juror was confused by the answer given by Sergeant Blakely that she did not know a firearm was “involved” until Mr. Hamilton’s arrest. This was at odds with her statement that she had initiated a firearms investigation. In my view had Sergeant Blakely said that the time of Mr. Hamilton’s arrest was when she learned that there was an actual firearm found, there would have been no source of confusion for this juror.
[21] My initial reaction was not to answer the question and advise the jury that as the case proceeded I expected this question would be answered. Ms. Monteiro preferred that I answer this question by reviewing a portion of the evidence of Sergeant Blakely with the jury and Mr. Smith agreed with this. Accordingly, I answered the question by reminding the members of the jury that what the witness said was evidence, that what I said was not evidence and that it was up to the jury to determine the evidence in this case. I then briefly reviewed the evidence of Sergeant Blakely and in particular confirmed that she had testified that she commenced a firearms investigation, that that was the reason for the surveillance and that Sergeant Blakely found out that a gun was actually involved around the time Mr. Hamilton was arrested and that she then went to the location where the firearm was discovered. I also advised the jury that they might be confused by the evidence at times as it unfolded by individual witnesses but that once they heard from all of the officers it should come together.. This answer seemed to satisfy the jury and no further questions were asked, even during the jury’s final deliberations.
The Second Application for a Mistrial
[22] On May 17th Mr. Smith stated that he wanted to renew his application for a mistrial and that he was going to make some new arguments. I permitted him to proceed and make his submissions.
[23] Mr. Smith did not dispute the Crown’s assertion that between the time of his first application and the time of the second application for a mistrial nothing further had been said in evidence about the reasons for the investigation of Mr. Hamilton or the confidential source or anything else of that nature. In other words the situation was the same except the Crown’s case was now closed and the first Defence witness had been called. The only intervening matter was the question from one of the jurors concerning the evidence of Sergeant Blakely which I had already answered and concluded was not of concern.
[24] Mr. Smith argued again that the statements by Ms. Monteiro and any evidence to that effect were inadmissible and highly prejudicial as it was investigative hearsay. It was his position that the limiting instruction that I had given was insufficient to undo the prejudice to Mr. Hamilton who had essentially been forced to bear the risk of the Defence strategy of alleging an inadequate police investigation even though he had not taken this position. Mr. Smith submitted that what was already a “landslide case” for the Crown had been turned into an “avalanche”. Otherwise save for what I will come to, his submissions did not differ materially from what he argued when the issue was first raised.
[25] One new submission made by Mr. Smith when the application was argued the second time was that the contents of the tip were actually overstated as the tip did not specifically name Mr. Hamilton, only a person with the name “Damion”. The police concluded based on the information and their own investigation that the source was referring to Mr. Hamilton. I was still of the view that at this stage the reliability of the tip was not an issue that should be delved into. I had specifically instructed the jury that there was no information about that and that it was an issue the Defence could not test. Mr. Smith had not objected to that portion of the limiting instruction.
[26] Mr. Smith had now had time to provide more case law although most of it was directed to the principle that investigative hearsay is not admissible in a criminal trial unless an issue with respect to the quality of the police investigation is raised by the Defence. He provided additional authority for that legal proposition, in addition to R. v. Mallory, 2007 ONCA 46, [2007] O.J. No 236 (Ont. C.A.), which he had relied upon when the matter was first argued. At para. 89 of Mallory, the court noted that the problem with respect to investigative hearsay in that case began when the Crown introduced the issue in opening and then called some evidence on that topic. The court held “[t]he issue of the integrity of the investigation was one for the defence to raise, not for the Crown to anticipate. Unless and until the defence introduced the issue, the Crown should have avoided it.” (at para. 89)
[27] I had already accepted this legal proposition concerning the inadmissible nature of investigative hearsay which was why I ensured the evidence to be given by Sergeant Blakely was limited in the first place. In my view the limited evidence she did give was admissible to provide some explanation for the surveillance of Mr. Hamilton and with the limiting instruction that was given, ensured that evidence would not be used by the jury against Mr. Hamilton.
[28] The facts in Mallory are quite different from the case at bar. In that case a new trial was ordered and one of the reasons was that the trial judge had failed to give a corrective instruction to redress the imbalance created by Crown counsel’s improper opening and closing statements which would have alleviated the risk that the jury might be improperly influenced. Furthermore there were many errors found by the appeal court and in view of the number and gravity of the errors the court concluded the convictions could not stand.
[29] At para. 338 in Mallory the court reviewed the limits of a proper Crown opening which simply put should be impartial and fair and be a brief outline of the evidence that the Crown intends to call. At para. 342 of the decision the court found that Crown counsel had demeaned the position of the defence and the role of defence counsel, engaged in preemptive argument, undermined the presumption of innocence and expressed her personal opinion as to the guilt of the appellants. At para. 344 the court found that the Crown counsel’s opening was not in keeping with the standard outlined in R. v. Boucher, 1954 3 (SCC), [1955] S.C.R. 16. The court went on to state at para. 345 that:
We recognize that there are many cases involving similar remarks, uncorrected by the trial judge, that have been found by this and other courts not to be fatal…[citations omitted]. In view of the numerous other errors to which we have referred, it is not necessary to pronounce definitively upon the effect of the Crown’s rhetorical excesses. Suffice it to say that we view the passages we have quoted from the Crown’s opening and closing to have been inappropriate, and that in our view, at a minimum, the trial judge should have given a corrective instruction to redress the imbalance it created and to alleviate the risk that the jury might be improperly influenced. [Emphasis added]
[30] Mr. Smith argued that since the Crown should never have made the comments that she made in the first place, there would otherwise have been no need for a limiting instruction. He submitted that the limiting instruction does not erase the prejudice to Mr. Hamilton but rather only minimizes it. He submitted again that Mr. Hamilton was living the consequences of the risks of a defence that attacks the integrity of the investigation, where the Crown is permitted to call some evidence in that regard, when he never raised the issue in the first place.
[31] Mr. Smith referred me to R. v. Figliola, [2011] O.J. No. 277 (Ont. C.A.) where at para. 103 the court stated:
…As the Supreme Court said in Last, at para. 46, a proper jury instruction can only limit the risk of inappropriate use of evidence. …It cannot remove potential prejudice to the accused as a relevant factor in the analysis.
[32] The comment of the Supreme Court in R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, was made in the context of “inappropriate cross-pollination or propensity reasoning” which arose in a joint trial. This, however, is not the test for whether or not to declare a mistrial. Furthermore, in considering whether remedial measures short of a mistrial will be effective, the courts have observed that the law assumes that, for the most part, juries will follow legal instruction. See R. v. Corbett (1988), 1988 80 (SCC), 41 C.C.C. (3d) 385 at pp. 400-401 and Daganais v. Canadian Broadcast Corporation, [1944] 3 S.C.R. 835 at 835 at 853.
[33] It is important to remember that in this case Mr. Smith was not objecting to the limited evidence given by Sergeant Blakely so much as the statements made in opening by Ms. Monteiro. Those statements were the focus of his complaint but those statements were not evidence and the jury was very clearly told this on multiple occasions. It was also an instruction I intended to repeat during my closing Charge to the jury.
[34] In R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, the Supreme Court laid down the following test for trial judges when deciding whether to grant a mistrial:
Is it likely that the exposure to the jury of the tainted information could affect the jury to the point that the entire trial is compromised and that no remedy other than a new trial is available?
[35] In R. v. B.(L) (1997), 1997 3187 (ON CA), 116 C.C.C. (3d) 481 (Ont. C.A.) Charron J.A. (as she then was) stated that:
In practice, it is inevitable that some evidence, which is either irrelevant or immaterial or both, will be heard, but, in many cases this evidence will be harmless and will not raise any concern. In other cases, the trier of fact will have to be instructed to disregard the inadmissible evidence. In exceptional cases, where irreparable harm has been caused by the admission of inadmissible evidence, there may be no option but to declare a mistrial. (at Endnote 6)
[36] In deciding whether to declare a mistrial, the court must also take into account not only the interests of the accused person but also those of “public justice”. See R. v. D. (1987), 1987 6777 (ON CA), 38 C.C.C. (3d) 434, at 445 (Ont. C.A.). In Pisani v. The Queen (1970), 1970 30 (SCC), 1 C.C.C. (2d) 477 (S.C.C.) at p. 479, Laskin J. stated “There can be no unyielding general rule that an inflammatory or other improper address to the jury by Crown counsel is per se conclusive of the fact that there has been an unfair trial …”
[37] In a case not referred to by counsel, R. v. Barnes, [1999] O.J. No. 119, (Ont. C.A.), the Court of Appeal upheld the decision of a trial judge who declined to declare a mistrial where the Crown, in his opening address, had told the jury that they would not hear much in the way of actual police firsthand evidence because of “certain rulings”. The Court of Appeal found that this remark was both “inaccurate and highly improper” but upheld the trial judge’s decision that any prejudice could be cured by an appropriate instruction to the jury. (at paras. 2 and 4)
[38] In the circumstances of this case, the information that the jury should not have received was given to them by Crown counsel during her opening address. The jury had already been told the Crown’s opening statement was not evidence. Furthermore the jury was told this again, immediately following the opening by a limiting instruction. The information of concern was not repeated in the evidence of any witness. There was one question asked by a member of the jury but that did not suggest any difficulty with the limiting instruction. Given the timing of my Preliminary Instructions, the offending comments by the Crown and my immediate limiting instructions, I remained satisfied that it was not necessary to declare a mistrial. The limiting instructions I gave to the jury accorded with what the law requires if investigative hearsay had been admitted into evidence. I was and remained satisfied that the information provided during the opening statement was not so prejudicial of a nature that the jury would not have the capability of disregarding it.
[39] In terms of the contents of the limiting instruction, in my view my limiting instruction was in accordance with the direction from the Supreme Court in R. v. Van, 2009 SCC 22, [2009] S.C.J. No. 22, where the court held that where evidence of investigative hearsay is admitted,
…the jury must be informed that they can only use evidence of this type for the limited purpose of setting out a narrative of the procedures that were followed in the investigation. They must be cautioned against relying on hearsay and opinion evidence that would be otherwise inadmissible in their determination of the guilt or innocence of the accused… [citations omitted]. (at para. 26)
[40] I should add that during the course of the Crown’s opening, she did inject her personal opinion with respect to the strength of the evidence which is not proper. Mr. Smith took no issue with this. I gave no limiting instruction to the jury about this at the time as it was covered in my Preliminary Instructions which I had just given. During a pre-charge conference I instructed the Crown to ensure she did not do this in her closing submissions. In my Charge I instructed the jury, without specific mention of the Crown’s comments, that counsel could not express their own views of the evidence and that insofar as they may have expressed their own personal opinions during the course of their opening or closing addresses about the evidence, the jury was to ignore their opinions and reach their own views on the evidence.
Disposition
[41] For these reasons the applications for a mistrial brought on behalf of Mr. Hamilton were both dismissed.
SPIES J.
Released: June 11, 2013
COURT FILE NO.: 13-30000360
13-30000359
DATE: 20130611
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
DAMION HAMILTON
Defendant
Ruling on Defence Applications
for a Mistrial
SPIES J.
Released: June 11, 2013