COURT FILE NO.: CR-15-70000235-0000 DATE: 20170630 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – FRED CURRERI and LINDA LAWLOR Accused
Counsel: Michael Lockner, for the Crown Susan Pennypacker, for the Accused, Fred Curreri Larry Lebovits & Amit Thakore, for the Accused, Linda Lawlor
HEARD: April 13, 2017
B.A. ALLEN J.
REASONS FOR DECISION (Application for a Mistrial)
BACKGROUND
[1] The defendant Linda Lawlor (“the Applicant”) brings this Application for a mistrial in relation to a judge-alone trial before me. The trial was conducted in May and April of 2016. The trial proceeded to verdict. I rendered judgment on June 30, 2016 in R. v. Curreri, [2016] O.J. No. 3658 (Ont. S.C.J.).
[2] This case involves charges of fraud against Fred Curreri and Ms. Lawlor in connection to eight properties owned by Mr. Curreri’s father, the elder Fred Curreri. Mr. Curreri and Ms. Lawlor were arrested in 2009. On the indictment before me, the Applicant and Mr. Curreri are jointly charged on a single-count for fraud over $5,000 contrary to s. 380 of the Criminal Code. Originally, Mr. Curreri and the Applicant were both charged in relation to all eight properties. But that changed for the Applicant.
[3] On September 6, 2012, following a preliminary inquiry, the judge committed Mr. Curreri to trial in relation to the eight properties. The Applicant was committed to trial in relation to only one of the properties. A new indictment was laid on April 27, 2015 by which the two defendants are charged jointly on fraud committed over a period from April 3, 2006 to November 30, 2007. This is the indictment before me.
[4] The mistrial Application emerges from the fact that Ms. Lawlor was tried in relation to all eight properties as Mr. Curreri was. The Court was not aware during the trial that the Applicant was only committed on one property, 1245 St. Clair Ave. W. (“1245 St. Clair”). At trial, the Crown (“the Respondent”) led evidence on all eight properties in relation to both Mr. Curreri and the Applicant. The trial proceeded in relation to both defendants on all properties. Mr. Curreri testified in his own defence. The Applicant exercised her right not to testify or to call any other evidence.
[5] The Applicant retained more than one lawyer during the course of this prosecution. Prior counsel represented her at the preliminary inquiry. The Applicant appeared unrepresented on September 6, 2015 when the Applicant learned she was being indicted in relation to only 1245 St. Clair and attended unrepresented on April 27, 2015 when the new indictment was laid.
[6] In May 2015, the Applicant retained Larry Lebovits, the lawyer who represented her at trial. Mr. Lebovits did not object to the manner in which the Respondent led its case. In fact, Mr. Lebovits did not limit his cross-examinations of witnesses to questions only about 1245 St. Clair and the Applicant’s involvement. On the contrary, his questions extended to the other properties as well. This can only be explained by Mr. Lebovits also not being aware of the limitation on the indictment to one property. Apparently, the Applicant did not inform her lawyer of the limited scope of the charge against her.
[7] On June 30, 2016, I convicted Mr. Curreri of fraud over $5,000 in relation to all eight properties. As it turns out, I convicted the Applicant of fraud over $5,000 only in relation to 1245 St. Clair. October 31, 2016 was set as a date for sentencing both defendants.
[8] On October 31st, without notice to either the Court, the Respondent, or to Mr. Curreri’s new counsel, Susan Pennypacker, Mr. Lebovits presented to the Court and the other parties a Notice of Application for a Mistrial. Amit Thakore appeared that day indicating that he would be arguing the mistrial Application. An adjournment of the Application was requested and granted to return February 10, 2017 and a further adjournment requested and granted to return on April 13, 2017.
[9] The Applicant does not assert abuse of process or prosecutorial misconduct. However, she takes the position that her right to a fair trial and full answer and defence was imperilled by the trial being conducted on parameters broader than the limited scope of the evidence related to the charge she faced. Defence counsel assigns blame to the Respondent for prosecuting the Applicant on all properties without alerting the Court of the limit that should have been placed on the evidence related to the other properties. Notice to the Court of the limitation, according to the Applicant, would have permitted the Court to determine the propriety of admitting the evidence.
[10] The Respondent takes the position that the blame is shared, the result of a mutual error. The Respondent points to the fact that from one year before trial the Applicant became aware of the limited scope of the indictment and of the further fact that Mr. Lebovits was retained. As I noted earlier, it appears the Applicant did not communicate to her counsel the limit on the charge against her. The Respondent points to the affidavits of the Applicant and Mr. Lebovits, filed on this Application, to support its view that no satisfactory explanation was given as to why the Applicant did not alert the Court, for her own part, about the limit on the charge against her.
[11] I agree that while the error was mutual, the primary responsibility for the error is that of the Crown. The Crown is the initiator of the criminal trial process and the prosecutor of the case against an accused. The Crown is obligated to put before the court the scope of the prosecution, that is, all the evidence it considers relevant to the offences charged and the legal proof of the facts.
[12] But, of course, defence counsel has its own responsibility to know the charges against its client before and during trial. How else can the defence properly prepare its case against the Crown? Moreover, should the Crown fall short of its obligation to put the proper parameters of a charge before the court it does not behoove the defence to itself be silent or unaware of the charge and allow evidence to come before the court and not advise the Court as to any parameters on its use.
[13] I arrive at that conclusion not to say that the evidence related to the other properties should not for any reason have been before the court nor to say that I accept the Applicant’s position about the effect of this evidence on trial fairness. As I find below, the evidence serves to provide narrative and context to the relationship between Ms. Lawlor and Mr. Curreri.
THE ISSUES
[14] The question is whether the use of the evidence and the manner in which the trial was conducted provide the grounds for a mistrial. The defence takes the position that the trial of the Applicant was improper and resulted in two types of harm, namely, that the trial led to the introduction of improper evidence:
- that irreparably tainted the trial; and
- that deprived the Applicant of the ability to make a fair and informed decision as to how to conduct her defence including whether to exercise her right to testify at the proceeding.
ANALYSIS
The Effect of the Evidence Related to the Other Property Transactions
The Applicant’s Position
[15] The Applicant’s position is that the evidence pertaining to her involvement in other transactions, for which she did not stand charged, improperly expanded the scope of the trial. This evidence, in the Applicant’s view, should have been circumscribed for the Court as to its use to ensure that it was not considered in determining the Applicant’s guilt.
[16] The Applicant points out that the transaction related to 1245 St. Clair occurred at the end of the time period on the indictment. From this fact the Applicant argues that the earlier transactions constituted prior discreditable conduct or “bad acts” and, being in the nature of propensity evidence, was improperly put before the Court. In the Applicant’s view this evidence ought to have been subject to an admissibility hearing. This was evidence related to charges that previously had either been withdrawn or discharged.
[17] The Applicant acknowledges that I did not base my finding of her guilt on 28 Ruden (the elder Fred Curreri’s family home) or any property other than 1245 St. Clair. However, the Applicant points to obiter dicta in my decision where I comment on the Applicant and 28 Ruden. The Applicant refers to the following passages:
[169] The evidence shows that while Ms. Lawlor surely left her hand prints on 28 Ruden, I will show the evidence related to that property is not such that the Crown was able to prove the essential elements of fraud against Ms. Lawlor.
[185] I arrive at that conclusion aware there are suspicious circumstances surrounding Ms. Lawlor and 28 Ruden. For instance, there is no evidence that she knew the elder Fred Curreri or her co-accused before the transfer of the property. There is no evidence Ms. Lawlor ever lived at or had any physical connection with 28 Ruden. Yet on the RBC mortgage Application she indicated she resided at 28 Ruden. Why would she do this if not for some unsavoury purpose?
[186] The large mortgage placed with RBC and the wanton and swift dissipation of the mortgage funds are indeed causes for suspicion.
[192] Why would a person who Ms. Lawlor apparently did not know transfer such a valuable property to her? Should this not have alerted Ms. Lawlor that she was possibly involved in a wrongdoing?
[18] The Applicant argues the use of the evidence related to 28 Ruden tainted the evidence pool before the Court. The Applicant further asserts that whether an actual unfairness or an appearance of unfairness occurred, the use of the impugned propensity evidence created a miscarriage of justice. The Applicant cited the Ontario Court of Appeal in R. v. Johnson, 2010 ONCA 646 for the dangers of admitting prior discreditable conduct evidence.
The bad character evidence rule is an example of an exclusionary rule that rests upon this general principle. Evidence of the accused’s bad character cannot be adduced simply to show that the accused is the sort of person likely to commit the offence charged. While this evidence might arguably be relevant, it is inherently prejudicial when used in this fashion.
[R. v. Johnson, 2010 ONCA 646, at para. 83, (Ont. C.A.)]
[19] The Applicant cited the well-recognized concerns that a jury could employ impermissible prejudicial moral reasoning or reasoning prejudice when arriving at its decision. Moral reasoning refers to the possibility that a jury might convict the accused based on uncharged conduct rather than the charges before the court if other discreditable conduct is put before the jury. Reasoning prejudice refers to the possibility that the jury might be distracted from the charges before the court by past conduct evidence: [R. v. Johnson, 2010 ONCA 646, at paras. 85 and 86].
[20] The Applicant submits that irreparable harm has been occasioned by the admission of evidence related to the 28 Ruden and other properties. It is the Applicant’s view that it would be impossible and unfair to ask a trial judge to revisit their own decision in the context of a different factual matrix. The Applicant relies on, among other authorities, a decision made by a judge of this court, Trotter, J. as he once was, to support this view.
[21] In R. v. Drysdale, 2011 ONSC 5451, Trotter, J. presided over a trial where the accused testified. In his reasons for judgment, Trotter, J. made an adverse credibility finding against the accused where identification was at issue. Post-verdict and before sentencing, new evidence touching on identification came to light. Trotter, J. re-opened the trial and set aside the verdict. He decided that in view of his prior adverse credibility finding the only reasonable course of action was to declare a mistrial. Trotter J. held:
[28] The problem with continuing the trial was that I already made a very adverse finding against Mr. Drysdale, one that caused me to reject his evidence as a whole. … Any attempt to rebuild my credibility findings on a different footing would be disingenuous.
[29] Let me put it another way. If I were to continue the trial and permit any further evidence to be called, short of finding Mr. Drysdale not guilty on all counts (a result I am not sure is warranted either), he, along with reasonably informed members of the public, would always wonder whether my “new” conclusions and reasons were infected by my prior adverse finding of credibility. Whatever result I reached would always be open to question. The only way to address this issue in a manner that is fair to both sides is to start all over again.
[R. v. Drysdale, 2011 ONSC 5451, at paras. 28 and 29, (Ont. S.C.J.)]
[22] The reasoning in R. v. Drysdale was approved by Rosenberg, J.A., now deceased, of the Ontario Court of Appeal in R. v. Griffith, 2013 ONCA 510, [2013] O.J. No. 3565, at para. 40, (ONCA)].
[23] The Applicant did not testify, but notwithstanding this and the fact that no adverse credibility finding was made, the Applicant finds an analogy between my obiter about the Applicant’s connection to 28 Ruden and the adverse credibility finding by Trotter, J.
[24] In the Applicant’s estimation, the only fair remedy in the circumstances is to declare a mistrial.
The Respondent’s Position
[25] The Respondent starts from the basic premise that a mistrial is a remedy of last resort. A mistrial should only be considered when necessary to prevent a miscarriage of justice. Before granting a mistrial, the court is required to consider and reject as inadequate other less extreme remedies: [R. v. A.G., 2015 ONCA 159, at para. 50, (ONCA)]. The Respondent points to some of the harm that results from an unwarranted mistrial: a manifest failure of justice for the prosecution and accused, a substantial allocation of human and financial resources and the stress to witnesses: [R. v. Toutissani, 2007 ONCA 773, at para. 10, (ONCA)].
[26] The Respondent proposes re-opening the trial as an alternative remedy. This is an option which even after a verdict does not necessitate nullifying the entire trial which preceded the re-opening. I will discuss this remedy more fully below.
[27] Differing considerations come into play when deciding the appropriateness of a mistrial in the context of a trial before a jury as opposed to a trial before a judge alone.
[28] The dangers that can result in a mistrial most frequently occur in jury trials and prior to a verdict being rendered. The Ontario Court of Appeal observed that it is essential that prejudicial evidence or problematic procedures are not allowed in advance of the verdict because the reasons a jury arrived at its verdict cannot be scrutinized: [R. v. Arabia, 2008 ONCA 565, at para. 51, (ONCA). The concern centres on the jury’s reasoning being polluted by evidence so prejudicial that it cannot be saved by an instruction from the trial judge.
[29] Concerns about admissibility of evidence are not as critical with a judge-alone trial. With a jury trial one can only speculate about the reasoning behind the verdict. But that is not the case with a judge-alone trial where the judge’s reasons tell the tale about why and how the judge made the decision they did. Where the judge releases a decision a review of the reasons is all that is needed to reveal whether any impermissible reasoning or improper use of evidence infected the judge’s reasons for rendering the verdict they did.
[30] Of course mistrials have been granted in judge-alone trials where the judge’s reasons have been tainted with, for instance, an adverse credibility finding made previous to a request to re-open a trial as was the case in R. v. Drysdale. The Respondent submits it cannot see a way in which the decision in R. v. Curreri was impermissibly affected by the evidence related to the other properties, particularly 28 Ruden.
Analysis of the Effect of Evidence on the Disputed Property
[31] The Applicant did not refer to any particular parts of the evidence she regarded as inadmissible. It seems the Applicant’s position encompasses the entirety of the evidence connected to the properties other than 1245 St. Clair. Thus, in the Applicant’s theory the evidence related to the other properties is, in its entirety, disputed evidence. The Applicant makes a blanket assertion that the disputed evidence was improperly admitted.
[32] The Respondent makes the point, which I accept, that the disputed evidence is relevant to an issue other than disreputable conduct. It is probative of the level of cooperation between Mr. Curreri and others, including the Applicant, in effecting the fraudulent land schemes. The disputed evidence is admissible as proof of the nature of the Applicant’s and Mr. Curreri’s association. It is also admissible as narrative to give context to the dealing with 1245 St. Clair.
[33] Measure must be taken of whether the probative value of the evidence outweighs its prejudicial effect: [R. v. Corbett, [1988] 1 S.C.R. 670, at p.736, (S.C.C.)]. The Respondent argues, and I agree, that the probative value of the evidence to prove the connection between the two defendants in the land schemes outweighs the prejudicial effect of admitting the evidence.
[34] In a jury trial, if the judge determines that evidence otherwise inadmissible for one purpose is admissible for another purpose, the judge must provide an instruction to that effect: [R. v. G. (S.G.), [1997] 2 S.C.R. 716, at para. 69, (S.C.C.)]. As the Respondent points out, in a judge-alone trial, it is not unusual, for example, for a judge to hear evidence admissible against one defendant in a joint trial that is inadmissible against the other. The same is true with similar fact evidence. A judge can instruct themselves about the proper use of the disputed evidence. If the judge does not rely on the inadmissible evidence in arriving at the verdict, the judge’s findings have not been infected.
[35] The Respondent cited portions of my decision to establish that the basis of the verdict was restricted to the facts proven from the evidence related to 1245 St. Clair. At paragraphs 173 to 179, I cite the particular facts that underlie my finding that the Applicant satisfied the mens rea and actus reus of fraud in relation to 1245 St. Clair. My finding of guilt was founded on the following facts:
- Ms. Lawlor fraudulently transferred 1245 St. Clair from its rightful owner.
- Ms. Lawlor had no authority to transfer the property.
- Ms. Lawlor's intention was to misappropriate the owner's property without him knowing it.
[36] The Respondent cited other portions of my decision in support of its position that the verdict was not tainted by the disputed evidence. Those references are to the two properties, other than 1245 St. Clair, in which I found the Applicant had some involvement.
[37] At paragraph 170, referring to the Applicant’s involvement in banking transactions related to 200 Harwood, I stated: “Those involvements by Ms. Lawlor do not figure into my determination of Ms. Lawlor’s guilt of fraud”. At paragraph 182, in relation to 28 Ruden, I held, “[the transfer] was not an act committed by Ms. Lawlor. Ms. Lawlor did not transfer 28 Ruden. Mr. Zandi’s office, on behalf of Mr. Curreri, did this.”
[38] I found the Crown did not prove beyond a reasonable doubt either the actus reus or the mens rea of fraud in relation to Ms. Lawlor and 28 Ruden.
[39] The Respondent submits, and I have to agree, that nowhere in the decision on the Applicant’s guilt was evidence in relation to the other properties engaged for the impermissible purpose of discrediting the Applicant’s character. As the Respondent submits, there is nothing in the decision that shows resort was had to such reasoning as:
- Ms. Lawlor is of bad character due to other dealings in evidence;
- Ms. Lawlor’s involvement with 28 Ruden [and 200 Harwood] makes her more likely to have defrauded the elder Mr. Curreri; or
- Ms. Lawlor’s bank records or transfers make her more likely to have committed the fraud.
[40] Quite ironically, I arrived at a finding of guilt in relation only to 1245 St. Clair without actually being aware that the Applicant had been committed to stand trial only in relation to that property.
[41] I find the following words of the Court of Appeal in R. v. Arabia apply to the shortcomings of the Applicant’s position:
The appellant advances no argument that the findings of guilt are unreasonable and cannot be supported by the evidence introduced at trial. Nor does the appellant suggest that the trial judge’s findings of fact and of guilt are tainted by reliance on evidence that ought not to have been received.
[42] Beyond simply stating the reasons are tainted, the Applicant did not particularize where among the facts supporting guilt are the facts related to the other properties that influenced the verdict.
Deprivation of an Informed Choice on How to Conduct Defence
The Applicant’s Position
[43] The other harm the Applicant cites is based on what she calls the confusion created by the improper expansion of the scope of the Applicant’s trial. The Applicant’s counsel attributes no fault to Mr. Lebovits for himself not being aware of the scope of the charge against his client. Mr. Lebovits’ understanding at trial was that the Applicant was facing charges in relation to several properties including 28 Ruden. The Applicant submits that she misunderstood the committal ruling as to the nature of the charge against her. Mr. Lebovits’ advice to her was guided by the Applicant’s misunderstanding as well as confusion brought by the Crown leading evidence against the Applicant on properties beyond 1245 St. Clair.
[44] According to the Applicant, the harm rests in the fact that the expanded scope of the trial irreparably compromised her instructions to counsel on how to conduct a defence. The Applicant cites as primary concerns the unnecessary amassing of evidence and the needlessly more expansive examinations of witnesses in relation to the other properties.
[45] I take from the Applicant’s position that, were she to have known the limited scope of the charge, she might have made a different decision as to whether to testify or call other evidence. In the Applicant’s view, the confusion created by the Crown violated her fundamental right to make an informed decision as to whether to testify at her own trial.
[46] This too, according to the Applicant, resulted in a miscarriage of justice such that a mistrial is the only appropriate remedy: [R. v. Chiasson, 2009 ONCA 14, at para. 14, (Ont. C.A.)].
The Respondent’s Position
[47] The only example the Applicant provided of how the expanded scope of evidence might have impacted the defence, is the effect this would have on the Applicant’s decision to testify or call other evidence. In view of that concern, the Respondent offered as an alternative remedy, that the verdict be vacated and the trial re-opened to allow the Applicant to testify or call other evidence. The judge is not functus officio following a finding of guilt before sentence is imposed and the case is finally disposed of. So re-opening is a possible remedy.
[48] This remedy, although well-known at law, is only to be granted in exceptional circumstances: [R. v. Lessard, [1974] O.J. No 74, at para. 10, (ONCA) and R. v. Griffith, 2013 ONCA 510, at para. 12]. The Respondent submits, and I agree, that the situation presented by the mutual error of the Crown and defence qualifies as exceptional circumstances, not commonly facing a court.
[49] R. v. Arabia sets down the steps for re-opening a trial to allow further evidence, namely: setting aside the prior findings of guilt; receiving further evidence along with reply evidence by the Crown; counsel’s submissions; and a decision on the sufficiency of the Crown’s case in view of the new evidence: [R. v. Arabia, 2008 ONCA 565, at para. 49].
[50] In the Respondent’s view, which I accept, the option of re-opening trial would address the Applicant’s concern about not having had the opportunity to make an informed decision whether to testify or call other evidence. If the Applicant wishes she can bring evidence. This remedy is a viable alternative to the more extreme remedy of a mistrial.
[51] The Applicant however does not find re-opening the trial an acceptable remedy. As noted above, the Applicant analogizes my obiter on 28 Ruden with the strong adverse credibility finding in R. v. Drysdale and submits that taken together with the guilty verdict, a miscarriage of justice would result from re-opening the trial and allowing a second verdict to be decided. In the Applicant’s view, a mistrial is the only reasonable remedy in the circumstances.
CONCLUSION
[52] I find there is an important difference between R. v. Curreri and R. v. Drysdale. The accused testified in R. v. Drysdale and the judge made his credibility finding based on observing and hearing the accused in the context of all the evidence. The Applicant did not testify in the trial before me and I have no adverse credibility finding to consider in the determining whether it is appropriate to re-open.
[53] My query about why the Applicant would appear to unquestioningly take title to such a valuable property and the other comments made in obiter are clearly distinguishable from an adverse credibility finding. The words in obiter came after stating the reasons for the finding of guilt, did not influence the verdict, and were in relation to an accused who did not testify. This situation is not on the same evidentiary footing as the credibility finding in R. v. Drysdale.
[54] Under Canada’s Charter of Rights, the Applicant has the right to testify at her own trial and the countervailing right not to testify. An accused is guaranteed the right to silence. Thus, the Applicant does not have to accept the alternative remedy and can justifiably reject a trial re-opening for her to testify. But that is not to say that it follows that a mistrial is the only acceptable remedy. The circumstances of the case still must meet the standard of being one of “the clearest of cases” where refusing a mistrial would result in a miscarriage of justice. I do not find this is such a case.
[55] Further, even if I found re-opening not to be a fit remedy, for the reasons outlined above, a mistrial is not appropriate in the circumstances. Evidence related to the other properties was not improperly used in arriving at the verdict. There was no miscarriage of justice or irreparable harm to the Applicant caused by the mutual mistake of the Crown and the defence.
DISPOSITION
[56] I dismiss the Application.
B.A. ALLEN J. Released: June 30, 2017
COURT FILE NO.: CR-15-70000235-0000 DATE: 20170630 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN – and – FRED CURRERI and LINDA LAWLOR Defendants REASONS FOR DECISION (Application for a Mistrial) B.A. ALLEN J. Released: June 30, 2017