COURT FILE NO.: CR-19-1000030-0000
DATE: 20191018
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN and MINISTRY OF THE ATTORNEY GENERAL AND MINISTRY OF THE SOLICITOR GENERAL
– and –
SHAUN ROOTENBERG Applicant
Counsel: Mitchell Flagg, for the Crown Claudia Brabazon, Counsel for Non-Party, Ministry of the Attorney General representing Ministry of the Solicitor Bryan Badali, for the Applicant
HEARD: September 12, 2019
B.A. Allen J.
REASONS FOR DECISION
(Application for Mistrial)
BACKGROUND
[1] The applicant, Shaun Rootenberg, brings an application for a mistrial which arises from my decision to dismiss his application for a stay of proceedings. I delivered my decision on the application on July 19, 2019 in Reasons for Judgment that included a decision on the trial proper. On the single count on the indictment of fraud over $5,000.00 I found the applicant guilty.
[2] By way of background, seeking outstanding disclosure, Mr. Rootenberg sought and received an adjournment of his first trial date that was scheduled in July 2018. At the trial before me that commenced on May 6, 2019 the applicant brought an application for a stay alleging abuse of process under s. 7 of the Charter of Rights. The stay was sought based on late disclosure by the Crown of police notes and emails and based on an allegation that correctional officers abused their authority in strip searching him regularly during pre-trial custody.
[3] A party raising a constitutional question is required to serve the Attorney Ontario of Ontario 30 days before the application is set to be heard. The applicant short-served counsel for the Ministry of the Solicitor General of Ontario (“the Ministry”) on April 17, 2019. The Ministry has auspices over Ontario’s correctional facilities.
[4] The applicant originally anticipated that the application for a stay would precede the trial on the merits. On the application, counsel for the applicant delivered a lengthy affidavit sworn by the applicant, written submissions and a brief legal authorities. The Ministry filed a notice to dismiss the application in which it set out the grounds for its application. The Ministry sought to dismiss the abuse application principally on the basis that a complete evidentiary record in relation to the allegations against the Ministry was required and secondarily because the Ministry had not been properly served. After some discussion, the parties and the court agreed that the abuse of process application against the Ministry should be determined on a full record following the decision on the merits.
[5] The trial commenced on May 6th and proceeded over a period of ten days. A defence was not called. On the basis of evidence from Crown witnesses I found the Crown had proven beyond a reasonable doubt that the applicant had committed fraud over $5,000.00 with funds invested with him by the complainant. My Reasons for Judgment were set out in two parts. In the first part I dismissed the stay application in relation to both the disclosure issue and the claims against the Ministry. I made my decision based on the applicant’s affidavit materials, written submissions and case authorities and the written submissions and case authorities presented by the Crown.
[6] Following the oral delivery of my Reasons for Judgment, counsel for the applicant rose and respectfully submitted that I had in error dismissed the abuse application against the Ministry without a full record being before the court. The Crown was in agreement with the applicant’s counsel. After hearing submissions from the parties, I readily accepted the parties’ position and indicated I was prepared to reconsider my decision on the stay.
[7] Defence counsel posed as a way forward that consideration should be given to re-opening the stay application to allow a full record to be put before the court. I indicated my agreement with that approach and that I was prepared to hear the matter but would await the parties’ submissions on my jurisdiction to do so, whether I was functus officio or not. The matter was scheduled to return on September 12th.
[8] In the meantime, on August 19th, the applicant’s counsel filed an application for a mistrial rather than an application to re-open the stay application. The applicant posited a mistrial as the only reasonable remedy. The applicant was of the view that a reasonable apprehension of bias arose from the dismissal of the application absent a full record. Crown counsel filed materials in response submitting that re-opening the abuse of process application against the Ministry is the appropriate remedy which is within the court’s jurisdiction to consider. The application for a mistrial proceeded on September 12th.
THE PARTIES’ POSITIONS
The Applicant
Natural Justice and Procedural Fairness
[9] The applicant takes the position that a mistrial is the only reasonable remedy capable of assuaging the unfairness that in his view results from the manner in which the stay application was dismissed.
[10] The applicant argues he has been denied procedural fairness in relation to the abuse application. This, in the applicant’s view, raises an apprehension of bias in relation to the entire trial which makes a mistrial the only appropriate curative remedy. The applicant submits that a fundamental principle of natural justice, audi alteram partem, the right of both parties to be heard, has been violated.
[11] The applicant cites cases involving various types of court proceedings where at issue are procedural fairness and violations of the right of parties to be given an opportunity to be heard.
[12] The applicant points to a decision of this court, R. v. Villota. That case involved a certiorari application on bail where the Crown was denied an opportunity to advance argument on the issue of release where the court found the justice of the peace committed a jurisdictional error. The court held that “the denial of the right to be heard on the ultimate issue in the hearing is a flagrant violation of natural justice”: [R. v. Villota, 2002 CanLII 49650 (ON SC), [2002] O.J. No. 1027, at para. 107, (Ont. S.C.J.)].
[13] The applicant also relies on an Ontario Court of Appeal decision in R. v. McDonald where the defence was prohibited from supplementing its written submissions on a dangerous offender application with oral submissions to the court. The court held that, “subject to the right of the parties to agree otherwise, the closing arguments must therefore include oral submissions, held in open court, in the presence of the accused, counsel, the trial judge and the court reporter.” The court observed that procedural fairness invokes the principle that persons affected by proceedings should have the opportunity to present their case fully and fairly and have any decision affecting their rights, interests, or privileges arrived at through a fair, impartial and open process: [R. v. McDonald, [2018] ONCA 369, at paras. 38 and 41, (Ont. C.A.)].
[14] The applicant cites a further Ontario Superior Court of Justice case, R. v. Brown, which involves a summary conviction appeal. In that case, at the completion of evidence, the defence requested permission to bring a Charter application on a claim that the evidence of the arresting officer varied from the disclosure on his intended evidence. The court held that “care should be taken to permit an accused to avail himself of the protections of the Charter of Rights and Freedoms even if it means that the trial will take longer to complete.” The court found that the denial of the opportunity to advance the Charter application was an error: [R. v. Brown, 2005 CanLII 45966, at paras. 15 and 32, (Ont. S.C.J.)]
[15] The applicant submits that although the defence and Crown presented written submissions on the abuse application, it is clear from the trial record that the intention of the parties was to have the matter heard on a fully developed evidentiary record.
[16] The applicant submits that the manner in which the abuse application was dismissed without the applicant being afforded the opportunity to call further evidence, and for the Ministry to make submissions to the court, constitutes a particularly serious breach of procedural fairness, the point being that success on the application would have resulted in the end of the prosecution of the case. On this point the applicant relies on the proposition that the greater the effect on the life of the accused, the greater the need for procedural protections to meet the requirements of fundamental justice and fairness under s. 7 of the Charter: [Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC, at para. 118, (S.C.C.)].
Reasonable Apprehension of Bias
[17] The applicant takes the position that the denial of procedural fairness automatically gives rise to a reasonable apprehension of bias. The applicant relies on the principles enunciated by the Supreme Court of Canada in R v. S. (R.D.) which held that: “A system of justice, if it is to have the respect and confidence of its society, must ensure that trials are fair and that they appear to be fair to the informed and reasonable observer. This is a fundamental goal of the justice system in any free and democratic society” and, “If the words or actions of the presiding judge give rise to a reasonable apprehension of bias to the informed and reasonable observer, this will render the trial unfair: [R. v. R.D.S., 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at paras. 91 and 94, (S.C.C.).
[18] The oft-cited test for a reasonable apprehension of bias is as stated in R. v. R.D.S.:
… the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information.... [T]hat test is “what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.
R. v. S. (R.D.), at para. [31]
[19] In support of his position the applicant again cites R. v. Villota which held in relation to the bail matter:
In addition, a final decision made in circumstances of a denial of the right to be heard almost inevitably raises the spectre of prejudgment and a reasonable apprehension of bias. Would a reasonable member of the public or a complainant, reasonably informed, viewing bail proceedings in the circumstances here, conclude there was an appearance of bias against the prosecution? Quite apart from the unfairness to the Crown, this in turn brings the administration of justice into disrepute.
[R. v. Villota, at para. 108]
[20] The applicant relied on a further summary conviction appeal decision by the Ontario Superior Court of Justice. In that case the trial judge, without hearing any submissions from the Crown or the defence, dismissed the Crown’s case due to concerns over a Crown witness’s evidence and in doing so the court found the trial judge pre-judged the outcome of the Crown’s case: [R. v. Sibbert, 2018 ONSC 2731, at para. 31, (Ont. S.C.J.)]
[21] The applicant submits that in the case at hand the reasonable observer could only be left with the impression that I pre-judged the issue of the applicant’s guilt. The applicant submits moreover that an observer would be left to wonder whether I prevented the calling of further evidence that may have established the presence of systemic Charter violations in the correctional facility.
Mistrial the Only Appropriate Remedy
[22] The parties do not dispute, and I accept, that I am not functus officio following the finding of guilt and that it is within my discretion to declare a mistrial: [R. v. Burke, [2002] SCC 55, at para. 74, (S.C.C.) and R. v. Griffith, 2013 ONCA 510, at para. 12, (Ont. C.A.)].
[23] To support his view that a mistrial is the only fair remedy, the applicant argues that the apprehension of bias affects the entire proceedings. The applicant relies on the Supreme Court of Canada in R. v. Khan and R. v. Curragh for the proposition that, where bias by the trial judge in words or actions or the apprehension of bias are sufficiently serious, trial unfairness results and a mistrial might be the proper remedy.
[24] During the jury’s deliberations in R. v. Khan the jury requested transcripts of a pathologist’s testimony. The transcripts were delivered to the jury and defence counsel subsequently discovered that the copy of the transcript given to the jury inadvertently contained a record of matters discussed in the absence of the jury during a voir dire, matters that had been ruled inadmissible. Defence counsel moved for a mistrial on the basis that the proceedings had become tainted and the trial unfair. The judge refused the mistrial.
[25] The appellate court found the trial judge had not committed an error in law in their assessment that the jury’s exposure to the tainted transcripts did not affect the jury to the point that the entire trial was compromised such that no remedy other than a new trial was available: [R. v. Khan, 2001 SCC 86, at para 70, (S.C.C.)].
[26] R. v. Curragh involves manslaughter charges. During the trial the judge telephoned the Crown’s office and indicated he was not pleased with the manner in which the Crown attorney was conducting the case. The trial judge recommended that the Crown attorney be removed from the case and failing that he would act to have him removed. The Crown and an accused brought a motion for recusal which the trial judge refused to grant. The trial proceeded and the trial judge ordered a stay of proceedings on the basis of failed and late material disclosure by the Crown. The court held:
The right to a trial before an impartial judge is of fundamental importance to our system of justice. Should it be concluded by an appellate court that the words or actions of a trial judge have exhibited bias or demonstrated a reasonable apprehension of bias then a basic right has been breached and the exhibited bias renders the trial unfair.
[R. v. Curragh, 1997 CanLII 381 (SCC), [1997] 1 S.C.R. 537, at para. 7, (S.C.C.)]
[27] The Supreme Court of Canada concluded that the judge’s conduct in contacting the Crown’s office gave rise to a reasonable apprehension of bias, ordered a new trial and set aside the stay.
[28] The applicant also cites the Ontario Court of Appeal cases, R. v. Griffith and R. v. C.D.H., in which the court approved declarations of mistrials where the trial judges had made findings of guilt.
[29] In R. v. Griffith, cited above, the trial judge acquitted the accused on gun-related charges. The matter was adjourned for sentencing. On the return date the trial judge indicated he had reconsidered the findings of guilt and was re-opening the matter of guilt and entering acquittals. The Crown appealed. The appellate court held that the trial judge erred in entering acquittals. In allowing the appeal the court observed that the trial judge erred in not requesting submissions and in setting aside the findings of guilt. The appellate court concluded that this resulted in taint on the fairness of the process. The court set aside the acquittals and ordered a new trial: [R. v. Griffith, at para. 38].
[30] R. v. C.D.H. involves a circumstance where the trial judge acquitted the accused on sexual assault charges. After the verdict and before sentencing the trial judge summonsed the officer in charge of the case to his chambers and engaged in an inappropriate conversation involving the complainant in the case. The officer reported the conversation. The Crown appealed the acquittal and moved for a mistrial. The trial judge granted the mistrial on the basis of an appearance of bias as the conversation with the officer about the evidence tainted the perceived fairness of the process: [R. v. C.D.H. 2015 ONCA 102, at para. 13 (Ont. C.A.)]. The appellate court upheld the trial decision.
Transfer of the Stay Application to another Judge
[31] Section 669.2(1) of the Criminal Code provides for the transfer of jurisdiction over a case to another judge of the same court if for any reason the judge is unable to continue. The applicant takes the position that this is not an appropriate avenue for him to take in this case as it would not in his opinion remove the taint attached to the verdict.
[32] The applicant distinguishes the Court of Appeal decision in R. v. Leduc from the case at hand. In that case the trial judge recused himself from hearing an application for a stay when facts potentially giving rise to an apprehension of bias came to his attention during the application. The trial judge ordered the stay application be transferred to be heard by another judge on the basis of an apprehension of bias. The appellate court agreed that the trial judge was entitled under s. 669.2(1) to request another judge hear the stay application. The appellate court held the appearance of bias only affected the application and not the trial record because the bias arose only during the application: [R. v. Leduc, 2003 CanLII 52161 (ON CA), [2003] O.J. No. 2974, para. 62, (Ont. C.A.)]
[33] The applicant submits that the facts in the case at hand differ from Leduc. It is his view that, unlike Leduc, in the case at hand, because the reasonable apprehension of bias arose in the course of the delivery of the decision on guilt, the reasons on the stay were delivered very close to and are therefore connected to the reasons on the trial proper. This in the applicant’s view resulted in irreversible taint on the entire proceeding that cannot be cured by another judge hearing the stay application.
Analysis of the Crown’s and Applicant’s Positions
Natural Justice and Procedural Fairness
[34] The Crown takes the position that a mistrial is an inappropriate and disproportionate remedy in the circumstances of this case. In the view of the Crown there are less stringent solutions that will fairly address the irregularity related to the dismissal of the stay application.
[35] As noted above, the Crown does not dispute that the applicant has the right to be heard through calling evidence and making submissions to allow a full record to be before the court on the application for a stay in relation to the applicant’s claim against the Ministry. The Crown agrees that the right to call evidence is a fundamental element of natural justice and accepts the principles expressed in the case authorities cited by the applicant. It is the Crown’s view that the circumstances and procedural contexts in the cases the applicant cites are clearly distinguishable from the case before this court.
[36] The Crown points out that the applicant does not claim that he did not receive a fair trial or that anything during the trial gave rise to a reasonable apprehension of bias. But rather that the applicant takes exception to the manner in which the reasons for judgment were delivered which in the applicant’s words brought a “spectre” of a reasonable apprehension of bias on this court’s part.
[37] The Crown summarized and distinguished the key legal and procedural contexts of the cases on natural justice cited by the applicant.
- R. v. Villota involved a review of the decision on a bail hearing. The justice rendered a decision without allowing the Crown to make submissions on facts and law. The violation of the right to be heard and the breach of natural justice in this case involved the release of the accused, the “ultimate issue” to be determined.
- In R. v. McDonald the defence was denied the opportunity to make oral submissions at the completion of a dangerous offender hearing which was to determine whether the accused would face indefinite incarceration. The appeal court held the violation of natural justice, being the refusal to hear from the defence, was fatal to the hearing. The violation of the right to be heard was directly connected to the determination on the merits of the dangerous offender hearing.
- In R. v. Brown the appeal court reversed a conviction because of the trial judge’s refusal to allow a mid-trial s. 8 Charter application. The case involved evidence in a driving offence case that a police officer’s evidence in disclosure differed from his trial evidence. The summary conviction judge determined the trial judge erred in refusing the Charter application related to the charge before the court. The error was directly connected to the trial judge’s reasons for judgment.
[38] The Crown points out, and it is the case, that my Reasons for Judgment on the stay application are structurally set out as a preliminary determination which decision is based on the applicant’s written submissions and the Crown’s responding materials. The Crown submits, and I find it to be correct, that the Reasons for Judgment on the stay application are not connected to the substantive issues in the trial on the merits.
[39] Looking at the applicant’s position, I find that to establish a connection between the determination on the application and the determination on the merits, the applicant places his focus on the form in which the Reasons for Judgment were written and delivered; that is, the fact that the decision on the merits followed immediately after the presentation of the decision on the stay application.
[40] I am more inclined toward the Crown’s perspective that the decision on the stay application is completely separate in substance from the decision on the merits. I agree with the Crown that the form of delivery does not establish a substantively close connection between the two parts of the Reasons for Judgment. That is to say, the stay application is in no way connected to the assessment on the substantive issues in the trial proper.
[41] I accept for those reasons that the application for a stay of proceedings is separate from a determination of the ultimate issue of guilt or innocence of the applicant on the charge of fraud.
[42] The applicant focussed his attention in the mistrial application on the denial of procedural fairness in relation to his claims against the Ministry. But I will address the late disclosure portion of the application.
[43] In relation to the disclosure, I point out, as does the Crown, that I relied on the extensive materials filed by the applicant and the responding materials provided by the Crown in my decision to refuse a stay on that ground. I found I had a sufficient basis in the evidentiary record, the written submissions and case authorities provided by the parties, to arrive at the determination. My decision on that matter does not depart from the commonly cited legal authorities.
[44] Procedural unfairness is a great concern, and a mistrial in the appropriate circumstances, a proper remedy where the error or irregularity is connected to the ultimate issue to be determined. As I concluded above, the irregularity in this case is not connected to the ultimate issue of guilt or innocence.
Reasonable Apprehension of Bias
[45] The applicant’s position is that the decision to dismiss the stay application is on its own a denial of procedural fairness which, in the applicant’s words, “gives rise to a reasonable apprehension of bias in relation to the entire criminal proceeding.” The applicant is of the view that procedural fairness and a breach of natural justice automatically give rise to an apprehension of bias. However, as will be seen, the Supreme Court in R. v. Khan observed that what is required is an examination of the nature and extent of any irregularity before a determination can be made of whether a miscarriage of justice, such as the appearance of bias, has occurred.
[46] Questions on the appearance of bias bring to the fore concerns about the impartiality of the judge. Impartiality lies at the heart of the judicial system. Impartiality can be conceived of as “a state of mind in which the adjudicator is disinterested in the outcome and is open to persuasion by the evidence and submissions”. Partiality refers to when a reasonable observer would conclude a judge’s mind is closed or at least strongly resistant to persuasion in spite of evidence yet to be adduced and/or the submissions yet to be made: [Justice W. Gorman, “Reasonable Apprehension of Judicial Bias in Trial Proceedings” 2009 55 C. L.Q. 46 at para. 21 and R. v. R.D.S., at paras. 104 and 107].
[47] Applying the test for a reasonable apprehension of bias involves a fact-driven and objective exercise, not a subjective one, not one founded on the suspicions of the litigants. The standard of proof for a reasonable apprehension is a weighty one that rests with the party that makes the allegation. The alleging party faces the onus of rebutting the strong presumption that judges will carry out their oath of office. Rebutting the presumption requires substantial evidence that goes beyond a mere suspicion to establish a real likelihood or probability. The standard of proof is one of a balance of probabilities: [R. v. Roberts, at paras. 59 and 69].
[48] The authorities cited by the applicant are in accord on the applicable test for a reasonable apprehension of bias: R. v. R.D.S., at paras. 111 - 114; R. v. Sibbert, at paras. 34 - 36; and R. v. C.D.H., at paras. 11 - 12. A recent case by the Ontario Court of Appeal elucidated the test when considering whether a mistrial was the appropriate remedy in answer to claims about the trial judge’s conduct during a jury trial. The court found that the trial judge’s interventions and behaviour were not of such a nature or frequency so as to give rise to a reasonable apprehension of bias: [R. v. Ibrahim, 2019 ONCA 631, at paras. 83 – 85, (Ont. C.A.)].
[49] I accept the Crown’s position that the applicant has gone no distance in proffering evidence to rebut the presumption that the judicial oath of office has not be honoured. The applicant has failed to adduce substantive or any evidence to establish the likelihood or probability that this judicial obligation was not carried out.
[50] Mere speculation is not sufficient. I believe this is the path the applicant went down where he suggested in submission that the manner in which the stay application was decided “may have led [a reasonable] observer to wonder whether the trial judge prevented the calling of further evidence that may have established the presence of systemic Charter violations in a major metropolitan detention centre.”
[51] The Crown points out and I agree, that the courts in the cases presented by the applicant found a reasonable apprehension of bias in circumstances that can be distinguished from the case at hand. As noted above, in R. v. Sibbert, R. v. C.D.H. and R. v. Ibrahim, the conduct, demeanor and attitude of the judge were considered in determining whether there was an appearance of bias.
[52] The Crown presented a further case where the attitude and demeanor of the trial judge came into question in the determination that the judge demonstrated a clear lack of impartiality. This case involved a trial judge hearing a sexual assault case who demeaned defence counsel’s cross-examination of the complainant, expressing “intemperate, condescending and sarcastic” personal disdain for counsel. In the Reasons for Judgment the judge unfairly engaged in differing levels of scrutiny of defence and Crown witnesses: [R. v. P.G., 2017, ONCA 351, at paras. 48 - 57 and 64 – 65, Ont. C.A.)].
[53] I accept the Crown’s observations that my Reasons for Judgment and my conduct during the trial do not reflect the serious problems that emerged in the cases presented by both the applicant and Crown. The applicant did not testify so the finding of guilt was predicated entirely on whether the Crown through its witnesses was able to meet its obligation of proof beyond a reasonable doubt.
[54] Far from being inappropriately partial to the Crown’s case on the merits, I actually rejected one of the Crown’s alternative arguments on the actus reus of fraud. I did not accept, as the Crown urged, that the applicant’s conduct in relation to the complainant demonstrated deceit or falsehood. I did not find the Crown proved that the applicant made fraudulent misrepresentations in his dealings with the complainant. I must agree with the Crown’s submission that my Reasons for Judgment on the merits reflect an acute awareness and appreciation for the facts. My decision reflects that I retained an open mind during my deliberations and in the drafting of the Reasons for Judgment.
[55] Further, I accept the Crown’s observation that following my delivery of the Reasons for Judgment when the applicant’s counsel questioned the dismissal of the stay application, I was immediately receptive to re-opening the application to allow a full record to be put before the court.
[56] I also accept the Crown’s position that when the question is asked: What would a reasonable, informed person, with knowledge of all the relevant circumstances, including the traditions of integrity and impartiality that form part of the background and essence of the Canadian judiciary, conclude about the circumstances that led to the decision to dismiss the application for a stay of proceedings? – I believe the answer is that there is no basis for such a person to conclude that the circumstances in this case give rise to a reasonable apprehension of bias. I find in the circumstances a reasonable and informed person would more likely conclude that an unfortunate error was made that is not indicative of or the result of bias or impartiality.
Mistrial as an Inappropriate Remedy
[57] Like a stay of proceedings, a mistrial is a remedy of last resort, only to be ordered where necessary to prevent a miscarriage of justice. The court should consider and reject as inadequate, less extreme remedies before ordering a mistrial: [R. v. G. (A.), 2016 ONCA 159, at paras. 50 – 56, (Ont. C.A.)].
[58] The Crown takes the position that a mistrial is an inappropriate and disproportionate remedy for the error of deciding the stay application on an incomplete record. The Crown refers to the Leduc case cited by the applicant which posits that new trials should be discouraged where possible:
New trials should be avoided where possible. The accused, the other participants in the trial, the criminal justice system and the community at large must all suffer the consequences – financial, emotional and otherwise – of going through the proceedings again …
[R. v. Leduc, at para. 154]
[59] Identifying a miscarriage of justice requires consideration of whether the trial was unfair or had an appearance of unfairness. The “appearance” factor should be assessed objectively in relation to a reasonable observer. The Supreme Court of Canada in R. v. Khan, cited earlier, set down inquiries and considerations that are useful in determining whether a miscarriage has occurred. It must be asked whether the irregularity, in all the circumstance, would taint the administration of justice. Courts should refrain from formulating any strict rules for determining whether a miscarriage of justice has taken place: [R. v. Khan, at para. 74].
[60] The Supreme Court offers the following guidance:
First, one should ask whether the irregularity pertained to a question which was, in law or in fact, central to the case against the accused. Thus, an irregularity which is related to a central point of the case is more likely to be fatal than one concerning a mere peripheral point. Of course, this issue will not always be absolutely determinative, and it is possible that a serious irregularity on a peripheral point can have rendered the trial unfair in reality or in appearance. Moreover, it is important to realize that some irregularities will not relate to a particular element in the case, but will rather create a general apprehension of unfairness on the whole of the case. This could occur, for instance, if jurors were led, through some irregularity, to feel greater sympathy for the Crown’s case in general or greater antipathy towards the accused.
Second, the court of appeal should consider the relative gravity of the irregularity. How much influence could it have had on the verdict? What are the chances that the apprehended detrimental effect of the irregularity did in fact occur? How severe could these detrimental effects have been for the accused’s case? This is important not only in relation to an actual finding of unfairness, but also in relation to the appearance of unfairness. A single irregularity which is unlikely to have had any significant impact would seem to indicate to the reasonable observer that the trial appeared fair.
Third, one should be mindful of the type of trial during which the error has occurred. Was it a trial by jury or by a judge sitting alone? Sometimes, irregularities can have a more severe impact on the fairness of the trial when they occur during a trial before a judge and a jury. This is especially true considering that some irregularities can have a psychological effect, which we presume judges are more apt to overcome than juries. However, this question is not absolutely determinative, and some irregularities will render the trial unfair even if they occurred before a judge sitting alone, while other mistakes may not be fatal even if they took place before a jury. Thus, a well-instructed jury may have the capacity to overcome irregularities.
Fourth, and related, is the possibility that the irregularity may have been remedied, in full or in part, at the trial. When the trial judge realizes that an irregularity has occurred, he or she may consider whether to declare a mistrial, but when possible, he or she may also attempt to remedy the error. The decision of whether or not to declare a mistrial falls within the discretion of the judge, who must assess whether there is a real danger that trial fairness has been compromised. Although that discretion is not absolute, its exercise must not be routinely second-guessed by the court of appeal.
[R. v. Khan, at paras. 75 – 78; authorities cited in the passage are omitted]
[61] As noted earlier, I found the irregularity related to the decision on the stay application bore no effect on the factual or legal considerations of guilt or innocence in the trial proper. As the Crown pointed out, the Reasons for Judgment dismissing the stay application turns at this point entirely on a legal and jurisdictional analysis rather than on factual or credibility findings provided in the applicant’s materials, pending a full record being available.
[62] As well, given that judges enjoy the presumption that they meet the obligations of their oath of office and in view of the fact that applications such as the one before this court are presided over by a judge sitting alone, the reasonable likelihood is that the irregularity will have a lesser impact on fairness than were the matter heard before a jury trial. That is, as observed in Khan, a curative measure is likely to be more effective in a proceeding before a judge for reason that a judge is more apt to be able to overcome the irregularity.
[63] In the circumstances, I accept the Crown’s proposal that I allow the application for a stay to be re-opened. This is a most appropriate curative avenue in that it is less extreme than a mistrial and is more proportionate to the seriousness of the irregularity. This approach will permit a determination to be made on a full evidentiary record, allowing the applicant to bring viva voce and other evidence and the Ministry to file records relevant to the applicant’s claim to mistreatment at the correctional facility.
[64] For the reasons stated above, I find it not necessary to exercise my discretion under s. 669.2 of the Criminal Code to transfer the case to another judge of the Ontario Superior Court of Justice.
DISPOSITION
[65] In the result, I deny the application for a mistrial. The application for a stay of proceedings shall be re-opened and heard on a date agreeable to the court and the parties.
B.A. Allen J.
Released: October 18, 2019
COURT FILE NO.: CR-19-1000030-0000 DATE: 20191018
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN and MINISTRY OF THE ATTORNEY GENERAL AND MINISTRY OF THE SOLICITOR GENERAL
– and –
SHAUN ROOTENBERG
REASONS FOR DECISION (Application for Mistrial)
B.A. Allen J.
Released: October 18, 2019