CITATION: R. v. Suarez-Noa, 2015 ONSC 3823

COURT FILE NO.: 14-4556

DATE: 20150612

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Haiden Suarez-Noa

BEFORE: The Hon. Mr. Justice Robert B. Reid

COUNSEL: K. Rogers, Counsel, for the Crown C. Gill and S. Kissova, Counsel, for the accused

HEARD: June 10, 2015

REASONS FOR GRANTING MISTRIAL APPLICATION

[1] The accused in this matter faces a charge of second-degree murder. A jury was selected on June 8 and 9, 2015.

[2] On June 10, following the opening address and the subsequent reading of an agreed statement of fact into the record by the Crown, counsel for the accused made a motion for a mistrial. I granted that motion and dismissed the jury with reasons to follow. These are my reasons.

[3] The factual context of this case is that the accused, Mr. Suarez-Noa, has agreed that he did stab Tania Cowell with a knife.

[4] In discussions in open court, but not in the presence of the jury, counsel for the accused indicated that he expected to present a defence based on provocation, and that it is likely that the accused will testify on his own behalf.

[5] The issue giving rise to the mistrial application was whether the trial could proceed fairly based on certain remarks the Crown made in her opening, which defence counsel submitted were inflammatory. The Crown in her opening made inferences to the thoughts and opinions of the accused based on the Crown’s review of the anticipated electronic evidence. She also referred to the theory of the defence.

[6] Although the Crown is entitled to act as a strong advocate within the adversarial process, it cannot adopt a purely adversarial role towards the defence. That principle, adopted by the Supreme Court of Canada in R. v. Cook (1997), 114 C.C.C. (3d) 481, (S.C.C.) at para. 21, builds on the premise set out in R. v. Boucher (1954), 110 C.C.C. 263 (S.C.C.) at 270 that:

It cannot be over emphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before the 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 the prosecutor excludes any notion of winning or losing; his [or her] 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.

[7] It is well-established that the opening address by the Crown is not the appropriate forum for argument, invective, or opinion. To quote the Ontario Court of Appeal in R. v. Mallory, 2007 ONCA 46 at paragraph 338:

The Crown should use the opening address to introduce the parties, explain the process, and provide a general overview of the evidence that the Crown anticipates calling in support of its case… Simply put, “the Crown’s opening address should be impartial and fair, a brief outline of the evidence that the Crown intends to call.”… At the opening of the trial the rules constraining the Crown “should apply with even more vigor” than at the closing when by then the jurors have heard and seen all about the case.”

[8] In this case, the first four minutes of a 19 minute opening address had nothing to do with providing a general overview of the evidence. That time was entirely devoted to pre-emptive argument. Crown counsel discussed personal personality traits that, while allowing one to appear calm on the outside could disguise “deep uncontrolled rage”. She inserted her personal preference for people who let her know where she stands with them.

[9] After inviting the jurors to consider that even amongst them, there would be different personality types, styles of learning, methods of processing information and coping with life’s difficulties, she stated:

Most of us, though, learn to live within the norms of our society even if it means that we have to push back against our instincts. Imagine a society in which anyone could act upon his first instincts. Actually I saw a 1984 movie about just that. It was called “Impulse”. I do not know if any of you have ever seen it. It had actually a pretty good cast. Due to the water supply in a small town, the people, the townspeople began experiencing episode after episode of bizarre crimes of passion. Scenarios involved people giving into their base or most feral instincts. That ladies and gentlemen, is what this trial is about: the difference between reasonable human beings and animals.

[10] Although the reference was not direct, in my view there can be no doubt that counsel was suggesting to the jury that the accused had behaved like an animal rather than a human being in committing the acts which, as she advised the jury, had been admitted.

[11] That characterization of the accused was both highly improper and was of such a nature that it could not be erased from the minds of the jurors even with a significant correcting instruction. The fairness of the trial process was irremediably compromised.

[12] Crown counsel continued with the background of the case, narrating the story of the events that led up to the death of the victim based on the evidence that the Crown intended to call. Near the end of the narration, counsel confirmed that the accused had admitted killing the victim but stated that “he will assert that he was provoked into doing so. He denies having any intent to kill [the victim] when he stabbed her 10 or 11 times.” She went on to say that the jury must consider the sequence of events leading to the death to decide “whether they accord with the accused’s version of events or belie it.”

[13] It may be that the accused will rely on the defence of provocation. It also may be that the accused will testify or call evidence in his defence. However, those are decisions for the accused to make in due course. It is highly inappropriate for Crown counsel to advise the jury of the defence position without a prior agreement, and particularly implying to the jury that the accused will testify. Every accused obviously has an unequivocal right to maintain silence and to require the Crown to prove its case beyond a reasonable doubt. She went further. She in effect reversed the burden of proof by suggesting that the jury should consider whether the evidence accords with the accused’s version of events or belies it.

[14] I knowledge the directive from the Ontario Court of Appeal in R. v. Toutissani, 2007 ONCA 773 at paragraph 9 that the remedy of a mistrial should be granted only as a last resort, and in the clearest of cases, where no remedy short of that relief will adequately redress the actual harm occasioned.

[15] In this case, the combination of rhetorical over-zealousness, personal opinion, argument, negation of the accused’s right to silence and implied reversal of the onus of proof combine to make a mistrial the only available option. The fairness of the trial was irreparably damaged beyond the possibility of redemption through a correcting instruction.

Reid J.

Date: June 12, 2015