Court File and Parties

COURT FILE NO.: 235/18 DATE: 2018/06/25

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Her Majesty the Queen Prosecution/Applicant – and – Michael John William Ball Accused/Respondent

Counsel: R. Dietrich and T. Shuster, for the Prosecution/Applicant A. Bryant and A.M. Morphew, for the Accused/Respondent

HEARD: June 18, 2018

PRE-TRIAL APPLICATION No. 6 (Section 653.1 Criminal Code of Canada)

Pursuant to section 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict, or until further order of the court.

THE HONOURABLE JUSTICE J. R. HENDERSON

Introduction

[1] This is an application by the Crown pursuant to section 653.1 of the Criminal Code of Canada for a ruling from this court that a pre-trial ruling made by Justice Taylor at the first trial of this charge is binding for the purposes of the second trial.

[2] The first trial ended in mistrial as the jury could not come to a unanimous decision on the charge of first degree murder. The re-trial, or second trial, is now before this court.

[3] At issue in the present pre-trial application is an evidentiary ruling made by Justice Taylor, dated October 6, 2015, that a statement made by the accused Michael Ball (“Ball”) to police officers on October 17, 2013, was made voluntarily and therefore was admissible at the first trial.

[4] On the present pre-trial application the Crown submits that, pursuant to s.653.1, this evidentiary ruling should continue to be binding for the purposes of the second trial.

[5] On this second trial, defence counsel wish to make submissions that the circumstances surrounding the accused’s statement constitute a breach of s.7 of the Charter. Defence counsel correctly submits that Justice Taylor’s ruling at the first trial dealt only with the voluntariness issue and not a Charter issue. For this reason, it is the position of the defence that it would not be in the interests of justice if Justice Taylor’s ruling remained binding on the parties for the second trial.

The Background Facts

[6] On October 17, 2013, Ball gave a statement to police officers after undercover police officers had staged a break-in, pursuant to judicial authorization, at Ball’s residence on the prior evening.

[7] As a result of the apparent break-in Ball called the Waterloo Regional Police Service, and reported the break-in. Two officers attended at Ball’s residence and took a statement from him.

[8] Prior to the first trial, the Crown brought a pre-trial application regarding the voluntariness of the statement, and defence counsel brought a s.7 pre-trial application. Justice Taylor heard evidence regarding the circumstances surrounding the taking of the statement. However, defence counsel withdrew the s.7 application and no submissions were made in respect to the s.7 challenge.

[9] Argument was heard by Justice Taylor on the voluntariness issue only. Justice Taylor ruled that the statement was made voluntarily, and therefore was admissible.

Analysis

[10] Section 653.1 of Criminal Code reads as follows:

In the case of a mistrial, unless the court is satisfied that it would not be in the interests of justice, rulings relating to the disclosure or admissibility of evidence or the Canadian Charter of Rights and Freedoms that were made during the trial are binding on the parties in any new trial if the rulings are made — or could have been made — before the stage at which the evidence on the merits is presented.

[11] In oral submissions on this pre-trial application, Crown and defence counsel offered competing interpretations of the words “or could have been made” in s.653.1. For the purposes of this decision, I accept that the s.7 application could have been made at the first trial.

[12] However, the ruling made by Justice Taylor was based solely upon the issue of voluntariness. Given that the accused now wishes to raise a s.7 Charter challenge, I find that it would not be in the best interests of justice for me to hold that Justice Taylor’s ruling remains binding for the second trial.

[13] I find that it is in the best interests of justice to permit the accused to raise a s.7 Charter challenge regarding the statement.

[14] In coming to that conclusion, I refer to the factors that are set out in para. 55 of R. v. Victoria, 2018 ONCA 69.

[15] Regarding factor number one, whether any new evidence will be tendered, I accept that there is no new evidence before me. That is, I have essentially the same evidentiary record that was before Justice Taylor. This factor generally favours a finding that the prior ruling continues to be binding at the second trial, and thus favours the Crown’s position on this pre-trial application.

[16] However, factor number two, whether any new arguments will be advanced, is a strong factor in favour of finding that the prior ruling is no longer binding. Clearly, there are new arguments to be made in this pre-trial application that were not made at the first trial. Specifically, defence counsel’s arguments related to s.7 of the Charter are new arguments at this second trial.

[17] Regarding factors number three and four, I find that it is in the interests of the parties and in the public interest to permit a Charter challenge on this second trial. It must be remembered that Ball faces a first degree murder charge, the consequences of which are extremely significant not only to Ball but to the public.

[18] Moreover, I accept that it is in the public interest for a court, in a serious criminal case, to permit a serious constitutional challenge to be heard on its merits if it is all possible. Before there is either a conviction or acquittal in a serious criminal charge, in my opinion, any constitutional concerns should be examined.

[19] Factor number five, any changes in legal principles governing the ruling, assists both sides in this debate. While there have been no significant changes in legal principles since 2015, I note that the landscape-altering decision in R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544 was delivered by the Supreme Court of Canada in 2014 approximately one year prior to the first trial. Although the new approach set out in Hart was public prior to Justice Taylor’s decision, I accept that it usually takes some time for a new approach to old principles to be fully appreciated. Although the legal principles in Hart had been enunciated by the date of the first trial, those principles were in their infancy.

[20] Factor number six, the nature of the evidentiary record, is the same as factor number one in this case.

[21] Factors number seven and eight tend to favour the defence position on this pre-trial application. That is, there will be different issues before the court if this ruling is re-litigated. Further, there is not likely to be any inconsistent ruling as Justice Taylor’s ruling dealt only with voluntariness, not the Charter.

[22] In summary, I find that s.653.1 was enacted to eliminate or restrict re-litigation of complex issues in cases that require a re-trial. Expressed another way, the parties should not be permitted to get a second chance to litigate issues that have already been resolved. In my view, the mischief that s.653.1 was intended to deal with does not exist in the present case.

[23] The position put forward by the defence in this case is not a re-litigation of the exact same issue that was decided by the court on the first trial. The defence position here is a good faith request to raise a Charter challenge that was not previously raised.

[24] Moreover, the danger of wasting valuable time and resources is not a real concern here as defence counsel is not attempting to challenge all of Justice Taylor’s rulings. There is only one ruling that is being challenged by defence counsel, and in my view that challenge has been conducted in an efficient manner.

[25] Therefore, I find that s.653.1 does not apply in the present circumstances. I find that Justice Taylor’s ruling regarding the admissibility of the statement of October 17, 2013 is not binding on the second trial.

J. R. Henderson J. Released: June 25, 2018