SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CR14500003410000

DATE: 20151029

RE: R. v. Darko Stankovic

BEFORE: Justice Spies

COUNSEL: Andrea MacGillivray, for the Crown

Dragi Zekavica, for Darko Stankovic

HEARD: August 27, 2015

Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant AND any information that could disclose such identity shall not be published in any document or broadcast in any way.

RULING ON APPLICATION FOR MISTRIAL POST JURY VERDICT

[1] On April 28, 2015, Mr. Stankovic was found guilty of one count of sexual assault by a jury. He has now brought an application for an order declaring a mistrial on the basis that the complainant has provided different information concerning the sexual assault in her victim impact statement which Mr. Zekavica submits supports the theory of the defence that Mr. Stankovic had an honest but mistaken belief that the complainant consented to having sexual intercourse with him.

[2] In support of the application, an affidavit from a legal assistant in the office of Mr. Zekavica was filed. It purports to summarize the evidence of the complainant at trial and those portions of the victim impact statement that Mr. Stankovic alleges support his application for a mistrial.

[3] The first issue is my jurisdiction to declare a mistrial given that the jury came to a verdict and found Mr. Stankovic guilty of sexual assault. Mr. Zekavica argued that I have a residual discretion to declare a mistrial notwithstanding that the jury has been dismissed because of the seriousness of the inconsistency and the nature of the offence. He provided two authorities in support of his position. Neither is of assistance.

[4] The decision of R. v. Brossart, 2011 SKQB 338, deals with a judge’s jurisdiction to declare a mistrial after a verdict of guilty but before an accused is sentenced in the case of a judge alone trial. The jurisdiction of a judge following a judge alone trial is different than a judge’s jurisdiction following a jury verdict; see R. v. Henderson, 2004 33343 (ON CA), [2004] O.J. No. 4157 (C.A.), leave to appeal refused [2005] S.C.C.A. No. 12, at para. 29.

[5] The other case Mr. Zekavica referred me to is a civil decision, Oberreiter v. Akmali, 2009 BCCA 557. Although the court in that case considered R. v. Burke, 2002 SCC 55, a case which considered a trial judge’s jurisdiction to declare a mistrial after a jury verdict in a criminal trial, it did so in the context of whether or not a judge can declare a mistrial after delivery of the verdict by a civil jury but before judgment in the action was entered. Obviously that case is distinguishable and it is of no assistance either. In any event, in that case the appellant conceded the trial judge’s jurisdiction to hear the mistrial application so the issue was not adjudicated.

[6] The case on point that does address my jurisdiction in this matter is Henderson, supra, a decision of the Court of Appeal. In Henderson, Feldman J.A. stated at para. 29:

A trial judge’s jurisdiction to alter a jury’s verdict, order a stay or declare a mistrial is extremely limited. The normal rule is that following the delivery of a verdict by the jury, the trial judge is functus in respect of that verdict, which cannot be altered, except on appeal.

[7] Justice Feldman relied on the Burke decision and an earlier decision of the Supreme Court of Canada; R. v. Mack (1988), 1988 24 (SCC), 44 C.C.C. (3d) 513 and concluded that because of the sacrosanct nature of a jury verdict, the ability to declare a mistrial at this stage of the proceedings is only in narrow circumstances; (1) where the jury does not render the verdict it intended; and (2) where the accused wants to raise the defence of entrapment.

[8] In reviewing the Burke decision (at para. 36) Justice Feldman pointed out that notwithstanding some broad language at para. 74 of that decision, all of the examples cited by the court were cases when the mistrial application was brought before a verdict had been recorded. She concluded that it is clear that the court “was not suggesting that the trial judge’s “exceptional jurisdiction” to recall the jury and power to declare a mistrial extended post discharge of the jury, except in the very limited circumstances described by the court.”

[9] Neither of the exceptions applies to the case at bar. I, therefore, conclude that I do not have jurisdiction to declare a mistrial in these circumstances. Given this conclusion it is not necessary to decide the substance of the application and whether or not the complainant’s victim impact statement is inconsistent with her evidence at trial. Were that necessary I would find that it is not.

[10] For these reasons the application for a mistrial is dismissed.

SPIES J.

Date: October 29, 2015