Court File and Parties
CITATION: R. v. Millard and Smich, 2016 ONSC 1352
COURT FILE NO.: 14-4348
DATE: 2016/02/29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Crown
A. Leitch on behalf of the Crown
- and -
DELLEN MILLARD Accused
R. Pillay and N. Sachak on behalf of D. Millard
- and –
MARK SMICH Accused
T. Dungey on behalf of M. Smich
HEARD: February 23, 2016
A.J. Goodman J.:
MID TRIAL WRITTEN RULING # 2 – APPLICATION FOR MISTRIAL
Reasons for Decision
[1] The applicant, Dellen Millard (“Millard”) makes an application for a mistrial. Mark Smich (“Smich”) joins his co-accused and supports this application.
[2] After hearing the submissions of counsel for both accused, I did not call upon the Crown attorney to respond. The application for a mistrial was dismissed with reasons to follow. These are my reasons.
Background:
[3] Tim Cook, (“Cook”) the principal for the Georgia, USA company that manufactured the small animal incinerator device known as the “Eliminator”. He was called as a witness by the Crown. During the course of his examination-in-chief, he was asked about whether, in his opinion, the Eliminator had been used more than once. Based on his view of the photograph (Exhibit 52, slide 52), Mr. Leitch specifically questioned Mr. Cook about whether he could say the device had been previously used. Mr. Cook replied that he believed that the device had been used more than once.
[4] At that point, there was an objection raised by defence counsel and the jury was asked to leave the court room pending further submissions.
[5] There had been no disclosure regarding any opinion evidence to be presented by Cook, to the effect that he had examined photograph(s) of the Eliminator and had determined that it had been used more than once.
The grounds for the mistrial:
[6] The applicant submits the basis for the mistrial includes that the Crown had undertaken not to introduce evidence of other alleged murders the applicant currently stand charged with. In particular, the Crown has indicated that it will not lead directly, or indirectly, evidence that the applicant allegedly murdered Laura Babcock (“Babcock”) or Wayne Millard.
[7] Given the Crown’s clear position that the Eliminator was acquired by the applicant for the purpose of incinerating human beings and that it has never been used for any legitimate purpose, the applicant says that only inference that can be drawn by the jury from Cook’s evidence is that the Eliminator has been used prior to May, 2013 to incinerate other human bodies. Moreover, the applicant says that he is left in an impossible position and cannot meaningfully respond. He cannot provide any contrary evidence, should he testify, regarding any prior use of the Eliminator as it may trigger the introduction of evidence on the Babcock charges. The Crown or the antagonistic co-accused could then question him on the prior uses and whether they were legitimate or not. The applicant cannot cross-examine other witnesses, such as Shane Shlatman, (“Shlatman”) regarding the use of the device without the same risk. On the other hand, the jury will question why the applicant has not addressed what the Eliminator was used for prior to this alleged incident.
[8] The applicant submits that the extreme prejudice caused by this evidence, his inability to respond, the fact that the evidence was introduced without notice, the theory of the Crown and the fact that there is no meaningful way of ensuring that the jury is able to disregard this evidence, means that the last resort remedy of a mistrial is the only meaningful option. It is impossible to correct the introduction of this evidence and the jury will be left to speculate. The applicant submits that a mistrial should be granted.
Legal Principles:
[9] In R. v. Griffith 2013 ONCA 510, [2013] O.J. No 3565 at para. 39, the Court of Appeal held that a mistrial should only be granted as a last resort where no other remedy is adequate.
[10] It is trite law that trial judges are particularly well-placed to assess the impact of inadmissible and potentially prejudicial evidence in the context of the trial dynamic, including the effectiveness of any warning that may be issued. Indeed, as a trial judge, I am cognizant of the direction from the appellate courts that we are only to order a mistrial "as a last resort, in the clearest of cases and where no remedy short of that relief will adequately redress the actual harm occasioned": R. v. Toutissani, 2007 ONCA 773, at para. 9. See also R. v. Chiasson (2009), 2009 ONCA 789, 258 O.A.C. 50, (C.A.) at para 14.
[11] This remedial test for has been described by Locke J.A. in R. v. Lawson (1991), B.C.A.C. 204 at 209, as follows:
In the course of considering the authorities given to me by counsel, I have had to examine cases of stays of proceedings, mistrials, and of abuse of process which are all in one way or another closely related to what I would call the requirements of fundamental justice as outlined in the Charter. There is one common denominator: all these cases say that these powers are to be exercised only in the clearest of cases. It is easy to see why this is. The remedy contemplates what I will call "a fatal wounding of the trial process", a wounding to the administration of justice which cannot be cured by remedial measures. See also R. v. R.(A.J.) (1994), 1994 CanLII 3447 (ON CA), 94 C.C.C. (3d) 168 (Ont. C.A.), at p. 174, per Doherty J.A.)
[12] In R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, the Supreme Court of Canada dealt with the issue of a mistrial, albeit on different facts than arise here. During the course of its deliberations, the jury had been provided with a transcript which unfortunately also contained a record of matters discussed in the jury's absence during the trial. The record included submissions by defence counsel referring to comments by the accused that had been ruled inadmissible. At para. 32, the court framed the question as "whether it was likely that the exposure by the jury to the tainted transcripts could have affected the jury to the point that the entire trial was compromised and that no remedy other than a new trial was available."
[13] Justice Arbour, for the majority, proceeded on the assumption that the jury had read the record before it and "understood that counsel for the appellant was concerned that the jury should not find out that his client had made statements that the court had ruled inadmissible. At paras. 36-37 of her analysis, Arbour J. concluded that the trial judge had not erred in not granting the mistrial:
I also think that this is what the trial judge understood, and that is why she cautioned the jury exactly as she did. She did not identify specifically the passages at issue, so as not to aggravate the damage, if any, but she clearly instructed the jury to disregard references to all matters that were not properly in evidence before them.
The trial judge was obviously concerned with the effect and consequences of what had transpired and she took seriously the application for a mistrial. I share that concern. However, in my view, she made no error when she exercised her discretion to deny the motion for a mistrial, nor did she err in declining to enter a mistrial after the jury had returned its verdict. The trial judge was in a privileged position to assess the possible impact of the mishap on the jury and the effectiveness of the sharp warning that she issued. There is no basis upon which I could say that she was wrong in that fine judgment call. The information before the jury was at most an innuendo. At the very end of a murder trial, the jury would have come to appreciate the existence of rules of evidence that govern the relevant materials upon which they are called to make a decision. Taking the case at its highest from the appellant's point of view, I believe that the admonition issued by the trial judge to the jury was sufficient to remedy any ill effect that the unedited transcripts might have had on the jury.
Discussion:
[14] First, even assuming for the moment that Cook’s evidence is accepted by the jury, I don’t agree with the applicant that this opinion is discreditable conduct or rises to the level of concern advanced by the applicant. While the evidence may be presumptively inadmissible, with respect, the applicant has overstated his position. Whether or not the Crown’s theory is borne out in that the applicant used the Eliminator to incinerate nothing other than human body(s) remains to be seen.
[15] From my review of the materials filed on this motion, it appears that Shlatman will testify that he used the Eliminator to conduct a “test burn”. There is also some other potential evidence to the effect that the Eliminator may have been used in respect of destroying a dead deer on the Millard farm property. At this stage, there may be some evidence to suggest that the Eliminator was purchased for pet cremation or other valid business activities. Whether this position will be flushed out through the course of the trial, is unknown at this juncture, albeit if so, will be subject to weight and ultimate consideration by the jury.
[16] I suppose that the only purpose why the Crown chose to lead this evidence is related to the issue of planning and deliberation. Thus, even if the Crown advances such a theory, at this stage, it is entirely speculative that the jury will leap to the conclusion that any other use of the Eliminator or “it appears to be used more than once” involved the incineration of another human body in July 2012. I do not see the relevance of Cook’s unfounded opinion evidence as it relates to this theory.
[17] In any event, I do not agree with the applicant’s assertions that the prospect of instructing the jury to disregard the evidence of Cook in respect of any opinion that the Eliminator has been used more than once is exceptionally dangerous given that the Crown will later argue that the singular purpose of this device is to incinerate human bodies. Again, it is premature to suggest that the jury will be reminded of this evidence when it hears the Crown close its case. Whether it remains a potential prosecution theory is still unascertained as such an approach may or may not be borne out in evidence.
[18] Most significantly, the entire basis for the proffered opinion is unspecified and there is no suggestion or nexus to any date. I don’t accept that the applicant is placed in a position having to address or rebut any “July 2012” prior use of the Eliminator. Cook’s evidence, at its highest, provides for an opinion of unspecified usage greater than once within an unknown timeframe. The witness’ evidence was a one sentence response upon being provided with photographs of the Eliminator taken in May 2013. It is also conjecture to suggest that this testimony triggers an introduction of evidence related to the Babcock event.
[19] It may be that the Crown will want to argue to the jury that this was a planned and deliberate murder and that this device was purchased solely for the purpose of incinerating the remains of Tim Bosma – one deceased - and never for any other legitimate purpose. The defence may want to argue that the Eliminator had been used one or more times and for legitimate purposes, through cross-examination of Crown witnesses or, if so inclined, by calling evidence without reference to explicit events arising during the July 2012 period. The jury will decide the issue based on the totality of the evidence adduced at trial.
[20] All that being said, I find that any risk of misuse of this evidence is nowhere near “insurmountable” as described by the applicant. In my opinion, there is an available remedy to address the concerns of any risk that the jury will be unable to disregard this evidence.
[21] In R. v. Liu, [2004] O.J. No. 2441, the Ontario Court of Appeal stated:
The trial judge in this case carefully considered whether he was required to declare a mistrial or whether any harm to the appellant could be removed by a clear, sharp warning. A trial judge is in a privileged position to assess the possible impact of a hearsay statement to the jury and the effectiveness of a sharp warning: R. v. Khan (2000), 2001 SCC 86, 160 C.C.C. (3d) 1 (S.C.C.) at para. 35. Having regard to the nature of the inadmissible evidence, the warning that the trial judge gave to the jury, and the deference owed to the position of the trial judge we would not give effect to this ground of appeal.
[22] Thus, in my opinion, an instruction to the jury is required. The remedy is a firm, sharp instruction to the jury that Cook’s last response to the question posed about the use of the Eliminator was unfounded, speculative opinion evidence. The jury was directed to ignore that part of Cook’s testimony. The instruction was provided immediately following my oral ruling. Consequently, the Crown attorney neither chose to advance the voir dire with respect to providing the foundation for Cook’s opinion evidence, nor asked any further questions of the witness.
[23] Before concluding, I must address other concerns raised in this motion. I agree with applicant that Cook’s response to the question was improper opinion evidence. The mere fact that he was the principal of the manufacturer of the Eliminator did not give him such inherent expertise. The Crown had neither sought to qualify Cook nor laid a proper foundation for this testimony.
[24] I also agree with the applicant that the fact that the Crown did not provide any disclosure or notice that it would be introducing this opinion evidence from Cook is disconcerting. It is clear that had the applicant been alerted to this evidence beforehand, he would have been positioned to object or move to exclude the evidence. With my comments provided to the parties during the course of my brief oral ruling, I trust that the Crown will make all best efforts to avoid this situation from re-occurring in the future.
Conclusion:
[25] The requirement for a fatal wounding of the trial process in the "clearest of cases" is simply a manifestation of the principle enunciated in Khan. If it was likely that the exposure by the jury to the tainted information could have affected the jury to the point that the entire trial was compromised and that no remedy other than a new trial was available, a mistrial must be granted.
[26] Having neither found information exposing the jury to tainting, a "reasonable possibility" that the accused’s’ rights to a fair trial was precluded, nor a "fatal wounding" of the trial process, the application for a mistrial is dismissed.
A.J. GOODMAN, J.
Released: February 29, 2016
CITATION: R. v. Millard and Smich, 2016 ONSC 1352
COURT FILE NO.: 14-4348
DATE: 2016/02/29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Crown
- and -
DELLEN MILLARD
Accused
- and -
MARK SMICH
Accused
MID TRIAL WRITTEN RULING # 2- APPLICATION FOR MISTRIAL
A. J. GOODMAN, J.
Released: February 29, 2016