Court File and Parties

COURT FILE NO.: CR-19-10000666-0000

DATE: 20191025

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. ANDREW WHITE

BEFORE: M.G.J. Quigley J.

COUNSEL: M. Brown, Counsel for the Crown/Respondent M. Luft, Counsel for the Defence/Applicant

HEARD: October 22-25, 2019

ENDORSEMENT

[1] Andrew White faces two sexual offence charges. They relate to A.S., the daughter of his former girlfriend. There is a charge of sexual assault and the charge of sexual interference. The allegations claim that the illicit sexual activity occurred between 2015 and 2017 when A.S. was between 11 and 13 years of age. As a minor, A.S. is legally incapable of consent.

[2] The complainant A.S. testified for a day and a half by closed-circuit TV from a child friendly room outside of the courtroom. She was vigorously cross-examined. There is no question that there are numerous significant inconsistencies in her evidence, both as to the number of times the inappropriate touching allegedly occurred, the circumstances relating to it, and what A.S. told various people at various points of time about the touching.

[3] Plainly, having regard to this evidence, there is no question that the credibility of the complainant's evidence, and more particularly its reliability, given the extensive inconsistencies in the evidence as initially relayed to the police in July 2017, at the preliminary inquiry, and at this trial, is very much in issue.

[4] Today, the Crown called the complainant's mother, Elisa Cote-Booth. She gave evidence in chief relating to the living arrangements in the apartment that she shared with her daughter and her partner, the accused Andrew White, about the bedbug situation that was an enormous problem for them and that is what allegedly caused A.S. to start sleeping in the king-size bed in the master bedroom with Mr. White, while her mother slept on the sofa in the living room.

[5] The alleged inappropriate touching was disclosed in July 2017. A.S. had been at summer camp for a week. She told a friend that she had been inappropriately touched by Mr. White. The friend promised that she would tell no one. Nevertheless, the friend went home and told her own parents, and those parents contacted the Children's Aid Society. The Children's Aid Society came to visit A.S.'s mother, and she was called home from summer school. At that time she and her mother went with the Children's Aid Society worker to a location where a police officer was present, who then took a statement from A.S., the initial videotaped statement that was introduced as her evidence in chief under s. 715.1 of the Code.

[6] Then, Crown counsel asked Ms. Cote-Booth a question that she either ought not to have asked or should have rephrased. But in any event, the question asked was what was the mother's reaction when she learned about the inappropriate touching alleged against her partner, Andrew White. The mother responded that at first she could not believe that this was possible, but then she elaborated, stating that she came to believe that the allegations were true "because I knew that my daughter A.S. would never lie about something like that and would always tell the truth" or words to that effect.

[7] This proclamation relative to the credibility of her daughter made by the mother occurred in front of the jury. Thus, having heard the evidence of the complainant, and being aware of the fact that credibility and reliability of her testimony would be central to the jury's determination, the jury has now heard a mother proclaim that in her opinion her daughter must be telling the truth because she would never lie about something like that.

[8] Counsel for the defence, Mr. Luft, asked to make a submission to me in the absence of the jury. The jury was excused. The witness was excused. Once both the jury and the witness were out of the courtroom, Mr. Luft made a motion for a mistrial based upon the evidence that the mother had just given moments earlier.

[9] I accept Crown counsel’s position that she had no idea that was what the response would be to her question, and that she certainly had no intention to elicit the response the mother gave.

[10] Of course, it goes without saying and is obvious that the mother's evidence relative to the credibility of her daughter or her beliefs on that subject are totally irrelevant to this trial. However, that inadmissible opinion of the mother serves a significant but impermissible oath-helping function relative to her daughter's credibility.

[11] The question, when faced with Mr. Luft's motion for a mistrial, is whether the obvious damage that that evidence would cause, leaving a jury in the position of having heard from a complainant's mother, her own flesh and blood, that her daughter would never lie about something like that, creates so much prejudice towards the defendant that the only possible remedy is a mistrial.

[12] A motion for mistrial is made by counsel where it is believed that the jury can no longer fairly adjudicate upon the case because of the release of information or evidence that has the potential to irremediably prejudice one of the parties. Amongst the difficulties that will typically give rise to a declaration of a mistrial are expressions of personal opinion by counsel on credibility matters, speaking to the jury about evidence that is inadmissible, misstating evidence, or any action generally that creates a situation where the jury is likely to be irremediably prejudiced.

[13] The test for granting a mistrial was set out by the Supreme Court of Canada in R. v. Burke, 2002 SCC 55, where the court stated as follows:

In declaring a mistrial the trial judge therefore turns his or her mind to the question of whether a mistrial is needed to prevent a miscarriage of justice. This determination will necessarily involve an examination of the surrounding circumstances. Injustice to the accused is of particular concern, given that the state with all its resources acts as the singular antagonist of the individual accused in a criminal case. This factor should be balanced against other relevant factors, such as the seriousness of the offence, protection of the public and bringing the guilty to justice.

Ultimately, the test boils down to whether there is a "real danger of prejudice to the accused or danger of a miscarriage of justice".

[14] In R. v. Toutissani, 2007 ONCA 773, at para. 9, the Court of Appeal of this province held that:

…[t]he declaration of a mistrial, like the declaration of the stay, should be granted only as a last resort in the clearest of cases and where no remedy short of that relief will adequately redress the actual harm occasioned.

[15] While I accept that there are circumstances where a strong cautionary instruction to members of the jury will serve the purpose of causing the jury to disabuse itself of some kinds of inadmissible evidence, or, for example, to avoid propensity thinking, regrettably I have concluded that this is not such a case.

[16] Regardless of whether the mother and her daughter, the complainant, had a good relationship or not during the relevant period, the fact remains that this witness is the complainant's mother, and she is her daughter. An opinion provided by any person relative to the credibility of a witness is absolutely inappropriate and irrelevant. An opinion by a parent about the veracity of their child is doubly inappropriate and irrelevant.

[17] However, while she said that she initially disbelieved her daughter, because she had seen no signs of anything going on, an opinion by a mother that she fully believed her daughter because her daughter would always tell the truth and would never lie about something like these allegations, it is a matter of such extraordinary prejudice to the defence and to the fairness and balance of the trial, that in my view I have no alternative but to declare a mistrial.

[18] I have tried to consider whether in very strong and clear instructions I could be satisfied that I could remove the risk of influence of members of the jury by the mother's statement. Regrettably, I cannot conceive of an instruction strong enough or broad enough to not only disabuse the jury of the fact that the evidence is inadmissible and totally irrelevant, but to permit balance to be restored and the presumption of innocence respected during this trial.

[19] In my experience, on two or three prior occasions over the past 15 years, a simple slip of the tongue, a statement made without thinking or without contemplating its consequences, once out and heard, cannot be remedied. As the expression goes, I have found myself having no choice but to conclude that "the horse is out of the barn" and there is no way that that problem can be remedied in a just manner that I can be certain will not leave irremediable prejudice to Mr. White.

[20] For these reasons, defence counsel's request for a mistrial is granted.

[21] Members of the jury, I will understand and can understand that you will find this difficult to accept after having listened to this evidence and faithfully tried to discharge your duties as jurors this week, but I cannot run the risk that the statement made by the mother and her testimony just before you were asked to leave the courtroom will not cause irremediable damage and prejudice to Mr. White. As such I wish to thank you for your service this week, but your service as jurors complete, and you are discharged.

M.G.J. Quigley J.

Date: October 25, 2019