Court File and Parties

COURT FILE NO.: 14-4348 DATE: 2016/04/12 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Crown A. Leitch on behalf of the Crown

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DELLEN MILLARD Accused R. Pillay and N. Sachak on behalf of D. Millard

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MARK SMICH Accused T. Dungey on behalf of M. Smich

HEARD: April 11 & 12, 2016 A.J. Goodman J.:

MID TRIAL WRITTEN RULING # 5 – APPLICATION FOR MISTRIAL

[1] The applicant, Mark Smich (“Smich”) makes an oral application for a mistrial. The co-accused, Dellen Millard (“Millard”) and the Crown attorney oppose the application.

Background:

[2] Mr. Pillay, on behalf of Millard, in the course of a Pollock and Morrisson application, (R. v. Pollock, 2004 16082 (ON CA), [2004] O.J. No. 2652 (C.A.)), sought and was granted the right to cross-examine a Crown witness, Brendan Daly (“Daly”) on several fronts. The focus of the cross-examination was primarily to address issues of whether Smich had an ability or disposition to intimidate Daly and others, in order to rebut assertions about Millard’s character of the same nature, already introduced in evidence. The other theme was with respect to the relationship between Daly and Smich, which involved their participation with marihuana.

[3] In the course of cross-examination, counsel for Millard posed various questions to Daly that extracted various responses about alleged violent attributes, in particular a reference to a rap lyric that gives rise to this application.

The grounds for the mistrial:

[4] The applicant submits that Millard’s counsel went beyond the scope of the Pollock and Morrisson application and elicited responses from Daly that went directly to issues of general propensity and bad character, including questions related to violence universally. There was also an egregious, specific reference to rap lyrics found on Smich’s iPad which were violent in nature.

[5] Ms. Trehearne submits that the evidence adduced from the witness had not been the subject of the prior application, and was not properly canvassed by the Court. The violent propensity evidence is highly prejudicial. It is submitted that no limiting instruction can cure the extreme prejudice caused by this improper character evidence being introduced before the jury.

[6] The applicant submits that the extreme prejudice caused by this evidence, his inability to respond, the fact that the evidence was introduced without notice, 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. The applicant submits that a mistrial should be granted.

[7] Mr. Pillay, on behalf of Millard submits that the scope of the cross-examination related to the issues addressed by the Pollock and Morrisson application fell squarely within its ambit. The questioning was posed to advance a position that Smich had a disposition and ability to control or manipulate others. Evidence of violent temperament tends to support the foundation for this proposition and thereby suggest that Daly (and perhaps others) were intimidated by Smich. Mr. Pillay submits that this line of questioning was proper and the evidence is necessary to affect a balance between co-accused advancing antagonistic defenses and for his client’s full answer and defence.

[8] Mr. Leach, on behalf of the Crown submits that a remedy of a mistrial is not warranted in this case and that there is no merit to the application. The Crown submits that there is no irreparable harm to Smich from the evidence adduced through Daly, and if there were any such prejudice, it was blunted by Mr. Dungey’s comprehensive cross-examination of the witness.

[9] The Crown submits that the Court provided timely inoculating instructions to the jury with respect to the effect of any propensity evidence raised in Mr. Pillay’s cross-examination of Daly and that the evidence did not distort the “playing field” between the parties.

Legal Principles:

[10] In this trial, I already addressed some of the fundamental legal principles that are applicable for this type of application in my February 29, 2016 ruling [2016 ONSC 1352- unreported].

[11] 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.

[12] 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.

[13] 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 3447 (ON CA), 94 C.C.C. (3d) 168 (Ont. C.A.), at p. 174, per Doherty J.A.)

[14] 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. 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."

[15] 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:

[16] First, even assuming for the moment that Daly’s evidence is accepted by the jury, it must be placed into context. Propensity evidence is generally not admissible at the instance of the Crown. Such is not the case here with counsel for both accused raising Pollock and Morrisson issues in order to attack the character of the co-accused in this joint trial. The balancing of the competing interests of both accused in an antagonistic defence situation is of paramount import.

[17] In my opinion - and with one exception - Mr. Pillay’s line of questioning did not run afoul of my ruling. Counsel is entitled to delve into areas related to the exercise upon which they seek to cross-examine on the character of the co-accused, subject to the trial judge’s directions arising out of the Pollock and Morrisson application. That does not mean that counsel can, in the course of such questioning, conduct limitless and unbridled examinations or run contrary to the ambit of the ruling. It is a matter for counsel to raise a timely objection if such is the case. None was raised here in respect of the witness, Daly.

[18] I am not persuaded by Smich’s argument about any reticence to properly object in front of the jury. As pointed out by Mr. Leach, there were ample opportunities to object in a timely manner. Such activity has not inhibited either counsel to date with respect to other evidential issues arising in this trial.

[19] In any event, I do not agree with Smich’s assertions that the discreditable or violent propensity evidence against him was improperly adduced. It is clear that from my ruling on this issue, counsel was free to advance questions related to Smich’s behaviour or ability to intimidate others. It may be supportable by Daly’s fear or perception that Smich may be violent at times, and thus is a person who can be intimidating. As a result, Daly and perhaps others, (Arthur), did what they were told. The foundation for such a proposition is relevant and probative.

[20] In his responses to various lines of questioning, Daly’s testimony was somewhat confusing and equivocal. It will be for the jury to decide whether they accept that Smich told Daly that it was his firearm in the tool box.

[21] The one exception I mentioned a moment ago is in reference to the one-line extract from the rap lyric posed in cross-examination. I tend to agree with Ms. Trehearne that this question went beyond the scope of cross-examination of Daly that I initially permitted on the issue of intimidation. Indeed, in discussions with counsel after the completion of Daly’s testimony, I raised whether by posing this specific question and referring to the entire sentence in the lyric, Millard had opened the door to his character generally.

[22] That being said, the rap lyrics (to which I have now been provided with a copy) contain numerous other dire references to gratuitous violence and disreputable conduct. Mr. Pillay’s question to Daly was limited to the one stanza. In my view, the limited line of questioning is probative to another issue that arose during the course of this witness’s testimony, namely ownership, possession, or control of the alleged murder weapon, a .380 calibre firearm.

[23] The one-line reference in the rap lyric to a .380 tends to corroborate Daly’s understanding or explanations and affords some evidence about the witness’ assertion that it was Smich’s gun in the tool box. It may also place into perspective Daly’s befuddling testimony about the discussion he had with Smich regarding bullets at the time they were viewing a YouTube video. I am satisfied that the reference to a .380 in the rap lyric deals with a live issue at trial beyond the notion of any propensity for violence that may be inferred by the second part of the one sentence. Recall that the witness did not unequivocally recall the lyric, and it is not evidence in this trial. Millard’s counsel was entitled to elicit the evidence for full answer and defence.

[24] Whether the jury need be reminded of the lack of evidence regarding this rap lyric, with a proper limiting instruction may be required at an appropriate time. Or it may become more relevant to an issue at trial. The jury will decide the issue based on the totality of the evidence adduced at trial.

[25] Initially, the applicant raised another concern about a reference to the “Zombie bullets”. Unfortunately, the matter of the “Zombie” bullets was inadvertently mentioned by Daly during his examination-in-chief. I am satisfied that it was unplanned and unsolicited. As discussed with counsel during the trial, it was agreed that this piece of testimony was best left alone without any limiting instructions to it.

[26] I cannot leave this ruling without commenting on the evidence already before the jury with respect to Millard. While my comments may tend to address Smich’s companion application regarding whether Millard’s good character is now open to rebuttal by the Crown and his co-accused, it also addresses this mistrial motion. I agree with Ms. Trehearne that, to this point in the trial, evidence has not been adduced, per se, specifically regarding Millard’s propensity for violence.

[27] However, it is clear to me that Smich has raised issues of bad character or injurious disposition against his co-accused. This includes suggestions of manipulation or domination over others, a sense of entitlement, a pampered megalomaniac, along with Millard’s involvement in illicit narcotics or marihuana, thievery, dishonesty and other behaviour or lifestyle choices of some disrepute.

[28] As mentioned to counsel, the introduction of bad character or propensity evidence by one accused towards the other may lead down a slippery slope. As trial judge, it is fundamental that a proper balance be struck between co-accused in order to permit full answer and defence, while respecting the rights of all parties to a fair trial.

[29] All that being said, I find that any risk of misuse by the jury of this propensity evidence is nowhere near “insurmountable” as described by the applicant. During the course of Daly’s evidence, limiting instructions were provided to the jury. In my opinion, balancing the interests of both accused have been and will continue to be addressed by timely instructions to the jury in order to negate the concerns of any risk that the jury will misuse this evidence.

Conclusion:

[30] 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 some exposure to Smich’s violent propensity evidence in the circumstances of this case and in the context of the defence positions 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.

[31] Having found neither a "reasonable possibility" that Smich’s rights to a fair trial was precluded, by any misuse of the propensity evidence properly introduced by a co-accused and subject to jury instruction, nor a "fatal wounding" of the trial process, the application for a mistrial is dismissed.

A.J. GOODMAN, J. Released: April 12, 2016