Court File and Parties
COURT FILE NO.: CR-20-50000152-0000 DATE: 2020-06-09 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – Leonardo Peralta Defendant
Counsel: Jim Cruess, for the Crown Karen E. Symes, for the Defendant Leonardo Peralta, defendant, present by telephone
HEARD at Toronto by teleconference: June 5, 2020,
Before: Low J.
Ruling on Crown Application for Declaration of Mistrial
[1] The Crown has brought this motion by teleconference for a declaration of mistrial. The defence opposes and asks that the trial be adjourned to a new date when the court is back in operation for in person hearings, presumably in September of this year. For the reasons that follow, i am granting the motion.
[2] This trial on multiple charges of bank robbery commenced March 2, 2020 before a jury. It was to have been completed within four weeks, but the Crown concluded its evidence before the end of the second week, and, had all proceeded with reasonable expedition, the trial would have been completed in 3 weeks.
[3] The case turns to large degree on the credibility of the main Crown witness, Mr. Forletta. His testimony, which was given by way of closed circuit television by reason of his age, covered some three days and he was vigorously cross-examined. The Crown also called 17 other witnesses and closed its case on March 12, 2020.
[4] In order to give defence counsel an ample opportunity to confer with her client who was at that time in custody on another matter, the trial was put over to March 17, 2020.
[5] In the meantime, over the intervening weekend, the Chief Justice ordered, subject to a small number of specific exceptions, all court hearings suspended and all pending matters adjourned to June 2020 by reason of the COVID-19 pandemic.
[6] When this matter came back on to be spoken to on March 17, defence counsel was not able to be physically present in court as she had an obligation to self-isolate and the jury had been instructed not to present themselves at the Courthouse that day.
[7] At that time, the parties were both desirous of saving the trial if possible and the jury members were canvassed as to their ability and willingness to resume the trial on June 1, 2020. The trial was adjourned to June 1, 2020.
[8] On March 17, the Government of Ontario declared a state of emergency. It would not be an exaggeration to say that the combination of the dangers posed by the pandemic and the restrictions imposed as a result of the state of emergency, with all their social and economic sequelae, have affected everyone and that the state of siege under which society has been operating for the last 12 weeks has caused unprecedented and justified stress, anxiety, insecurity and fear.
[9] As matters have transpired, the scheduled resumption date for the trial of June 1, 2020 was overly optimistic. The pandemic is not under control. There is no vaccine and no herd immunity.
[10] It is not safe to return to normal court operations as they were pre-pandemic, and recognizing these factors, the Chief Justice, after consultation with officials from the Ministries of Health and of the Attorney General, ordered that all matters scheduled for hearing in the month of June be adjourned and spoken to on July 9, 2020.
[11] It is apparent now that it will not be safe and feasible to resume in person hearings until September 2020 at the earliest. The bar and public have been so notified. It is also clear that even if it will be possible to conduct some hearings at the Courthouse, the physical requirements that must be in place to ensure safety of participants and of the public will be substantially different from those that presently exist and that significantly more physical space will be needed to conduct hearings, in particular, jury trials.
[12] At the same time, the court will be facing the massive backlog of cases that were to have been heard in March, April, May, June, July and August of this year, many of which will inevitably involve accused persons in custody and which will likely be given priority access to facilities.
[13] While the hope is that some court hearings will be able to resume at the Courthouse in September, the reality is that the Courthouse may or may not be functioning, and that if it is, it will not be at former capacity.
[14] In short, at this point, and probably on July 9 as well, it would not be possible to say that the trial will resume on a given day. This uncertainty would put the members of the jury in a particularly difficult position and arguably would add to the already significant stress and disruption to their lives and possibly livelihoods caused by the pandemic, and this assuming that they have remained and will remain healthy.
[15] C onsideration of the interests of the jurors is, however, not the most salient of the reasons for declaring a mistrial.
[16] I am of the view and agree with submissions of Crown counsel that the long effluxion of time, in this case some six months even if the trial could resume sometime in September, together with the unique circumstances that have caused the hiatus, has compromised the ability to have a fair trial of the charges.
[17] Even in optimal circumstances, it would be very difficult for members of a jury to remember oral testimony that they had seen and heard six months earlier, to call it to mind, engage with it, and to fairly synthesize it with more evidence and then submissions from counsel. In the hiatus, the jury will have gone back to their own routines, occupations and lives and will not be holding the matter of the trial in their minds.
[18] We do not have optimal circumstances. It is reasonable to expect that members of the jury will, to varying degrees, have undergone the disruption and stress to their lives that citizens of this country, and perhaps more particularly, residents of this city will have undergone in the last several months and will continue to experience for some time to come. In such circumstances, where people are at risk of harm from an unseen and possibly deadly threat, where their human connections are disrupted, their economic interests imperiled, and their lives and routines held hostage, it is not reasonable to expect that their minds will be as assiduously and adequately engaged in the subject matter of the trial to the degree that a fair and just verdict require.
[19] I have been referred to several decisions in which mistrials have and have not been declared after hiatuses of varying lengths, but as each case turns on its own facts and circumstances, they are not of great assistance. Factors such as the nature of the evidence – whether physical, documentary or oral – the length of the evidence, the complexity of the issues, the death or disappearance or intervening disability of witnesses and the dynamics of the trial are all relevant. While there is no bright line at any particular number of months that would militate in favour of declaring a mistrial, the case before me involves unprecedented circumstances resulting in an unprecedentedly long interruption during which all participants will likely have experienced unforeseen stress and disruption.
[20] There is an additional factor raised by the Crown in support of its argument that a reasonable perception of an inability to have a fair trial will arise. This is the fact that if the trial were to be adjourned to be resumed before the same jury, the memory of the Crown case will have faded with effluxion of time, and the memory of the defendant testimony will be the only thing fresh in the jury’s consciousness.
[21] It seems to me that this is but a subset of the more general problem of probable loss of recollection in these exceptional circumstances. The dynamic is, however, understandably a reason for defence seeking that very result. It is an advantage.
[22] Defence counsel argues that an adjournment would not be a miscarriage of justice whereas a new trial would be prejudicial to the defendant in that the main Crown witnesses is now apprised of the defence cross-examination strategy and cross-examination materials and, having been cross-examined, now has the opportunity to shore up his evidence.
[23] It is also argued that given the crush of caseload that the court will have when operations resume, it would be better to take one week to finish an adjourned trial than three weeks to retry the case.
[24] Finally, the court is reminded that s. 11(b) of the Charter has not been waived and is still in play.
[25] Section11(b) is not a relevant consideration on the motion before me. It is presumed in play unless waived and is an issue for another day if the defence should decide to raise it.
[26] As for the court’s caseload, the court is always desirous of husbanding its resources, but the interests of expediency cannot trump the goal of a fair trial.
[27] A retrial has inherent advantages and disadvantages to both sides. I could not say that it has greater disadvantages to one side or the other. I do not consider, in any case, the question to be whether a retrial is more advantageous to one side or the other. The question is whether a fair trial has been compromised by the circumstances that have arisen and regrettably, in the circumstance of this case, that has, in my view, transpired.