COURT FILE NO.: CR-5-50/19 AP DATE: 20200612 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – JAN PAUL TALAGA
Helen Song, for the Respondent Anil Kapoor, for the Appellant
HEARD: May 29, 2020
M.A. Code J.
Reasons for Judgement
A. OVERVIEW
[1] The Appellant Jan Talaga (hereinafter, Talaga or the Appellant) was charged with one count of criminal harassment, contrary to s. 264(2)(b) of the Criminal Code. The Crown proceeded summarily. The offence was alleged to have been committed between July 25th and 28th, 2014. Talaga was arrested on July 29, 2014 and the Information was sworn on July 30, 2014.
[2] Some two and a half years later, on January 17 and 18, 2017, the trial proceeded in the Ontario Court of Justice before Robertson J. The Appellant was represented by counsel. Two witnesses were called by the Crown, namely, the complainant M.L. and his wife R.K. No evidence was called on behalf of the defence. Submissions were completed on the second day of trial and Robertson J. reserved judgement for three weeks. On February 10, 2017, he delivered Reasons for Judgement finding Talaga guilty. The case was remanded to March 29, 2017 for sentencing. On that date, new counsel appeared on behalf of Talaga and advised that an “application to re-open the case for the purpose of calling evidence” was likely. A series of further delays ensued in order to facilitate preparation of the defence application.
[3] On October 29, 2017, Talaga’s new counsel filed a Notice of Application, seeking a mistrial on the basis that the Applicant Talaga’s “decision not to testify was neither valid nor informed.” In the alternative, the Applicant sought “an order re-opening his defence, thus allowing him to call fresh evidence before determination as to his guilt or innocence can be made.” In support of the Application, Talaga filed an affidavit explaining the circumstances that led to the decision not to call any defence evidence on the second day of trial and explaining his consistent wish to testify. The Crown filed a responding affidavit from Talaga’s trial counsel addressing the same issues. The Application was then heard by Robertson J. on three separate dates in December 2017 and February 2018. Both Talaga and his trial counsel testified, submissions were made, and the trial judge reserved judgement for two months.
[4] On April 27, 2018, Robertson J. released written Reasons for Judgement. He made findings favourable to Talaga on two issues, namely, that Talaga had not understood that the decision whether to testify “was his alone to make” and that he never had “the opportunity to make an informed choice” not to testify on the morning of the second day of trial. Based on these findings, Robertson J. concluded that “Talaga was deprived of the effective assistance of counsel in regards to the core complaint” concerning his right to testify, and that he was “entitled to a remedy.” Turning to the remedy, the trial judge concluded that the stringent test for a mistrial was not met but that the lesser remedy of re-opening, setting aside the earlier verdict, and continuing with the trial was appropriate. He reasoned as follows:
What is the appropriate remedy when a mistrial application is brought during the trial? In [R. v. Burke, 2002 SCC 55], [2002] 2 S.C.R. 857. at para. 75 which was cited in [R. v. Chaisson, 2009 ONCA 789], the Court noted that a mistrial may be appropriate where such a remedy is necessary to prevent a miscarriage of justice. However, the Ontario Court of Appeal in [R. v. Arabia, 2008 ONCA 568], at paras. 51-52 holds that to declare a mistrial should only be exercised in the clearest of cases.
In my view this case does not fall within the category of the clearest of cases. It is not a case where the miscarriage of justice cannot be remedied by a lesser remedy.
The Applicant was convicted on the un-contradicted evidence of the complainant. The accused has not testified and I have not made any findings of credibility against the accused. Any findings of credibility I have made based on the evidence of the complainant and the other Crown witness were made in the absence of the accused’s testimony and in complete absence of defence evidence.
There is nothing preventing me from a fresh analysis of the evidence should the accused wish to testify. If a trial judge can exclude an accused’s confession as being involuntary or obtained in violation of the Charter, but nevertheless continue as the trier of fact, I see no objective basis for a claim of reasonable apprehension of bias arising from my continuing the trial.
Further, as to counsel’s claim of the potential need to recall the Crown witnesses to put to them the accused’s evidence, that is at best speculative and easily accommodated in a judge alone trial.
In the present case where the evidence on which the conviction was entered was based on the un-contradicted evidence of the complainant, and where no findings of credibility have been made against the accused, it is, in a judge alone proceeding, reasonably easy to engage in a re-assessment of all of the evidence in determining if the Crown has met its burden. The Crown would not be prejudiced by the re-opening and the drastic and final remedy of a mistrial will be avoided.
[5] The trial resumed before Robertson J. and Talaga was called as the only defence witness. He testified on August 21 and October 18, 2018. The complainant M.L. and Talaga both testified briefly on November 2, 2018 in order to clarify an issue that they had not previously addressed. Written submissions were filed by counsel in December 2018. On March 1, 2019 the trial judge gave lengthy Reasons for Judgement finding Talaga guilty. On April 16, 2019, Talaga was sentenced to five months in jail followed by three years probation on terms that included no contact with the complainant and his wife, counseling and assessment as directed by the probation officer, and destruction of all photographs and digital images of the complainant in Talaga’s possession. The trial judge also imposed a life-time common law peace bond prohibiting contact with the complainant.
[6] Talaga appealed to this Court against conviction only. He served the custodial portion of his sentence and is presently on probation. He does not allege any errors in the trial judge’s reasons for convicting him or in any rulings concerning the admissibility of evidence. The only ground of appeal is that the trial judge erred in denying the remedy of a mistrial and in granting the lesser remedy of re-opening and continuing with the trial, after finding in the Appellant’s favour on the issue of his right to testify in his own defence.
[7] The appeal was heard on May 29, 2020, by video conference during the Covid-19 closure of the Court House. I reserved judgement at the end of oral argument. These are my Reasons for Judgement.
B. FACTS
[8] Given the one narrow issue on appeal, I will only summarize the main aspects of the evidence heard at trial. The case concerned nude photographs of the complainant M.L. that were posted near his workplace in July 2014, with the words “Gay For Pay” written on the photographs, apparently implying that M.L. was a homosexual prostitute. There was no direct evidence as to who had posted the photographs. As a result, most of the trial evidence focused on the lengthy troubled relationship between M.L. and one of his co-workers, the Appellant Talaga.
i) The evidence called by the Crown
[9] The complainant M.L. testified that he met Talaga around the year 2000 when they were both working at a restaurant in Toronto. M.L. would have been about 20 years old and Talaga would have been about 39 years old at the time. They developed a “friendship” that included M.L. agreeing to provide “sexual favours” for Talaga in return “for money and drugs.” This sexual aspect to the relationship ended around 2012, according to M.L. He had married and had two children by this time and he decided to focus on this family aspect of his life. M.L. denied ever being in a “dating” relationship with Talaga as he was always paid by Talaga for sex. In addition, he was seeing women at the same time as he was seeing Talaga.
[10] After their sexual relationship ended in 2012, Talaga would phone M.L. and send emails saying that he still loved M.L. Talaga had kept nude photos and videos that he had taken of M.L. In some of the emails he mentioned sending these photos to people who M.L. had known. M.L. owed Talaga money as a result of breaking his television in a moment of anger. Most of the emails discussed this particular debt, as well as other debts, and M.L.’s agreement to repay the debts. M.L. would respond to the emails and he tried to make small weekly payments to Talaga for a period of time, while also supporting his family. Some of the phone calls were becoming “nasty” and M.L. threatened to go to the police unless Talaga stopped “harassing” him.
[11] A number of these emails, dated in November and December 2012, were filed as exhibits. The email exhibits are over 40 pages long. Some of the emails were put to the witnesses and many were not. Without attempting to summarize Talaga’s lengthy emails to M.L., their tone was demanding, angry, acrimonious, and insulting. M.L.’s replies were short, asking Talaga to leave him and his family alone and to accept the small weekly debt repayments because “I just want to move on.”
[12] M.L. acknowledged in his testimony that he had been briefly involved in internet pornography in 2001, when he would have been 21 years old. He had used the name “Julian” when advertising his sexual services and there would have been naked pictures of him on an internet website. In one of the late 2012 emails, Talaga alluded to this earlier period in M.L.’s life and referred to him as “Julian”. In another email, Talaga referred to returning a “pink dildo” that belonged to M.L. by sending it to his wife’s stepfather Hamid. In another email, he suggested that he might visit M.L.’s father and tell the father about certain events in M.L.’s past. In some of the emails, Talaga used the name “J.P. Agalat,” which was Talaga spelled backwards. M.L.’s email account was used jointly by himself and his wife R.K., so she saw some of these emails. In one email, M.L. asked Talaga to “leave [R.K.] and our family out of this...stop harassing us. Take your payment and move on with your life.” In another email Talaga stated, “Please call the police, your Dad knows you spent the money on drugs and hookers...” In one of his last emails, on December 26, 2012, Talaga said that he was “sorry for acting like a jerk...”
[13] During this period in late 2012, M.L. and Talaga were both working as garbage truck drivers for GFL in Brampton. In early December 2012, M.L. went to the police in Brampton and complained about the above events. As a result, Talaga was charged with criminal harassment. Talaga’s terms of bail required no contact with M.L. They were working in separate locations so they did not see each other at work. All of the email and telephone contact ended at this point, while Talaga was on bail in Brampton. In May 2013, Talaga and M.L. were moved to the same GFL yard but there was still no contact while Talaga remained on bail. The Brampton charge was eventually withdrawn by the Crown on July 7, 2014. M.L. was present in court and so he knew that the charge had been withdrawn and that Talaga was no longer on bail. M.L. had told the Peel police that Talaga was not “violent” but that he was “temperamental” and he had made “threats”. M.L. also told the Peel police that he was not concerned for his “safety” but he was concerned that Talaga could “display those [nude] pictures [of me] wherever he feels fit to display them.”
[14] About a week after the Brampton charge was withdrawn, Talaga began coming up to M.L. at work or waiting and watching M.L. after work. In particular, M.L. described an incident after work on July 23, 2014 when he was driving home and Talaga followed in his own car and made certain gestures at M.L. Two days later, on July 25, 2014, M.L. and a co-worker were driving a full garbage truck to the GFL dump. They were on the same route that about 50 GFL garbage trucks would take on their way to the dump. M.L. stopped to turn at Caledonia and Castlefield and he saw a nude picture of himself with the words “Gay For Pay” on the picture. It was attached to the back of a sign post in the median, about a foot from his position seated in the garbage truck. There were two or three of these pictures and M.L. ripped them off the sign post. The nude picture was one that Talaga had and it was not from the internet, according to M.L. He did not believe that anyone else had access to it. The term “Gay For Pay” was one that Talaga had used before to describe M.L.’s practise of providing sexual favours for money.
[15] Later that same day, while driving back to the GFL yard, M.L. saw more of these pictures on a sign at the intersection of Kipling and Rexdale. After work, he went back in his car to this location and pulled the pictures off the sign post. The next morning, while driving in to work, M.L. saw two more of these pictures at the Dixon ramp off the 401 highway and in the median on Dixon Avenue. M.L. and his wife went to the police and they found three more of the pictures on Kipling Avenue. M.L. took photographs of some of these pictures attached to the sign posts. One of the pictures was on a sign post right at the GFL yard on Rexdale. The locations where he found the nude “Gay For Pay” photos of himself were around the GFL dump, around the GFL workplace, and near the off ramp and on ramp that he used when going to and from work on the 401 highway.
[16] The photographs that M.L. took of the sign posts, with his nude picture attached, and the nude pictures themselves that M.L. had ripped off the sign posts, were all marked as exhibits. On the back of some of the pictures, there was a watermark that read as follows: “001990AGALAT4824 julian.j”. There were about 12 to 15 nude photographs of himself that M.L. had found on the sign posts. He had not used the name “Julian” since about 2001 or 2002, when he was last involved in internet pornography and sexual services. M.L. testified that he was ashamed and embarrassed by the nude photographs of himself on the sign posts, as GFL is a “very macho work place”. He was also concerned for his safety at this point because he believed that Talaga had been given an opportunity to “drop it”, when the Brampton charge was withdrawn, but he was apparently continuing “to do things.” Talaga went to the police and he also reported the matter to his employer. GFL suspended both Talaga and M.L. while they investigated the workplace aspect of these events. M.L. was exonerated by his employer’s investigation, but he did not accept their offer to return to work, explaining that “I couldn’t show my face back there at GFL.” He found a new job that paid less and provided no benefits. M.L. acknowledged, in cross-examination, that he never saw Talaga putting up the nude “Gay For Pay” photos of M.L. on the sign posts.
[17] M.L.’s wife R.K. testified that she began living with M.L. in 2008 and she met Talaga at that time. She understood that M.L. and Talaga were friends. She first learned about M.L.’s past sexual relationship with Talaga when she spoke to M.L. about it, after she had seen an email from Talaga in November 2012 asking whether M.L. was seeing other men and whether M.L. had “ever loved him [Talaga]”. R.K. and M.L. shared a common email account. R.K. spoke to Talaga on the phone and learned that he had spoken to her stepfather Hamid about the debt that M.L. owed Talaga. R.K. also testified that some of the emails they received from Talaga in December 2012 had photo attachments. She identified three photographs – one photo of M.L. and Talaga together and two photos of M.L. naked. These photographs were attached to an email chain from Talaga dated between December 5 and 27, 2012. R.K. was also at her stepfather’s house when a package arrived from Talaga that was addressed to M.L. Her stepfather did not open the package. R.K. was aware of the email from Talaga stating that he was mailing M.L.’s “pink dildo” to her stepfather’s address in Port Credit.
ii) The evidence called by the defence
[18] The Appellant Talaga was the only witness called by the defence. He testified after the successful defence Application to set aside the verdict and re-open the trial. He was 57 years old when he testified in August 2018. M.L. was born in August 1980 and would have been 38 at this time. Talaga agreed that they met around 1999 and they worked together at a restaurant in 2000. Their relationship became sexual around late 2000 or early 2001. Talaga testified that M.L. was using cocaine at the time and Talaga would give him money to “party and play”, as the practise was known when M.L. wanted to use cocaine before having sex with Talaga. In cross-examination, Talaga agreed that M.L. needed money and that Talaga would give him small amounts. He denied giving M.L. “money and drugs for sex”, in the sense of a commercial transaction. He regarded their relationship as “romantic”, and “exclusive” on his part, although he acknowledged that M.L. was “dating girls” at the same time and that their relationship was “confusing.”
[19] In late 2007, Talaga came to believe that M.L. had stolen over $16,000 in cash from him. They were living together, Talaga had hidden the money in the basement, M.L. left the house and disappeared for a period of time, and the money was missing. Talaga met up with M.L. again in the fall of 2008 and confronted him about this apparent theft. M.L. did not deny it. By this point, M.L. was with his present wife, R.K., although they were not yet married. M.L. wanted Talaga to meet R.K. He also promised to repay the stolen money. They resumed their friendship and would have sex “the odd time.” Talaga acknowledged that M.L. was with “his female partner,” R.K., but Talaga continued to regard his own relationship with M.L. as “partly romantic sexual...I was in love with him.” Talaga proposed marriage at one point but M.L. declined the proposal. Talaga would videotape their love making, with M.L.’s knowledge, and in one of these videos (according to Talaga) M.L. said that he too loved Talaga.
[20] In the following years, starting in 2010, Talaga and M.L. became separated during two periods of time, when M.L. and R.K. went to live in Bulgaria. The second period of separation lasted for a year and a half. M.L. already had one child with R.K. and they had a second child in Bulgaria. Talaga felt that the love relationship between him and M.L. was now over. He saw M.L. and R.K. socially, with the two children, when they returned from Bulgaria to Toronto in the spring of 2012. This was about six months before the Brampton charge was laid. Talaga had started working as a garbage truck driver at GFL in July of 2012. M.L. also started working there shortly afterwards. Talaga and M.L. had resumed their sexual relationship, although M.L. was with his wife R.K. In August of 2012 an incident occurred where M.L. became angry and broke Talaga’s television. There was also an incident where M.L. told Talaga that he no longer wanted a “male partner,” now that he had a son. As a result, there was a period of silence when they stopped talking and meeting, aside from acknowledging each other at work. Talaga testified that he “was fine with letting [M.L.] move on.”
[21] Talaga explained that the “very nasty” emails and phone calls between himself and M.L. began later, in November 2012. They were provoked by “a very big insult” from M.L., who was seeking the return of his childhood Christmas ornaments and was offering to pay Talaga for their return. After this initial insulting email, things just “spiralled out of control” according to Talaga. He agreed that it was not “the best time of my life,” that he “acted badly,” and that “the gist of the [exhibit] emails I did send”. He went on to repeatedly testify that he had not read the emails, in order to see whether there had been any “alterations,” and he refused to verify their authenticity or accuracy. He testified that a lot of the emails involved attempts to settle the debts that M.L. owed him. He agreed that M.L. asked him at one point to stop contacting M.L. and his family, and that Talaga did not stop. He explained that, “I was forcing the issue”. He was willing to let go of the romantic sexual relationship with M.L. but he found it difficult “not having any contact at all, not a text or a phone call...” Talaga described himself as “quite the bitter person, and I was mad at him.” He felt that M.L. “was using people.” He described himself as feeling “hurt” and “angry” by the way that M.L. had treated him.
[22] Talaga acknowledged having possession of about 50 sexual photographs and 15 sexual videos of M.L., all stored on his computer. He was attracted to M.L. and these photos and videos were a “nice keepsake”. They were for Talaga’s personal use, but he also believed that he could distribute them. All of these photographs and videos were taken by Talaga himself with one exception. That one exception was the photo with “Gay For Pay” written on it that M.L. found on various sign posts around GFL in July 2014. Talaga testified that this particular photograph was taken by the pornography website that M.L. had worked for, known as “Video Secrets.”
[23] Talaga was familiar with the term “Gay For Pay”. It refers to a “straight guy who has sex with other men for money.” He agreed that M.L.’s description of their relationship “would fit” the meaning of “Gay For Pay.” He testified that he had never used this particular term in his conversations with M.L. However, he agreed that he did call M.L. a “prostitute” and “buy-sexual” (a play on the word “bi-sexual”) in one of the angry late 2012 emails, and that this email “characterized the relationship as sex and drugs for money.” Although Talaga had not taken the photograph of M.L. found on the sign posts around GFL, he acknowledged that it was included in his personal “picture library”, except that his copy did not have the words “Gay For Pay” written on it. Talaga had never given the photo to anyone else but it would have been publicly available to anyone who had looked at the website. Talaga testified that the website no longer existed. It had been taken over and had changed its name. He searched the internet, after being charged, in order to see if he could find the photograph on any website. He was unable to find it. He still had a digital copy of the photograph, which he sent to his lawyer by email. He agreed that he could have printed the photograph, if he had wanted to, but he never did print the photograph. It was during the early stages of their relationship, around 2001 to 2003, that Talaga knew that M.L. was working for the “Video Secrets” website. Talaga had downloaded the photograph from the website at that time.
[24] Talaga acknowledged sending sexual or nude photographs of M.L. by email on a few occasions. One occasion was in 2008, after M.L. had stolen money from Talaga and when M.L. was living with another guy. Talaga sent one photo of M.L. to this other guy and told him, “watch out for [M.L.].” On another occasion, M.L. had asked for the photo from the internet website, as well as other photos, so Talaga sent them by email and sent a “CD backup of most of the photos.” Talaga testified that he also sent nude photos to M.L. on another occasion, in November 2012, “so he [M.L.] knows which photos I had.” Talaga explained that he was trying to communicate to M.L. that “he [M.L.] would be embarrassed if his mother-in-law knew that these photos of him existed” and that “I had the power” to show the photos to his mother-in-law.
[25] Talaga testified that he had no recollection of referring to M.L. as “Julian”, which he knew to be M.L.’s “porn model name.” However, after reviewing an email dated November 25, 2012 from his email account, Talaga agreed “I must have called him Julian at some point.” Talaga also agreed that he sent M.L.’s “flesh-coloured dildo” back to him at R.K.’s stepfather's address. This was “another one of my not-so-good moments.” He explained that he was angry with M.L., he did not have an address for M.L., and he wanted to “torment” or “upset” M.L.
[26] The Brampton charge was laid on January 1, 2013 and was not withdrawn until July 7, 2014. Talaga had no contact with M.L. during this year and a half long period. Shortly after the Brampton charge was withdrawn, Talaga acknowledged that there was an incident on July 23, 2014, when he and M.L. both left work at GFL in their cars about three minutes apart. They saw each other on Kipling and they were passing each other, and then M.L. slowed down in front of Talaga in what he described as a “tit for tat” exchange. Talaga denied following M.L. or making any hand gestures towards him during this July 23, 2014 incident in their cars.
[27] Talaga denied posting the nude photographs of M.L. around their GFL work place in July 2014. He did not know who posted the photographs. He acknowledged seeing the photographs in a number of places near their work. In particular, he saw one photograph on a stop sign, as he was leaving the GFL yard and turning at Rexdale Blvd. He testified that, “you can’t help but not see it when you leave the yard…employees and anybody could see” the photographs. Talaga did not do or say anything, after seeing the photographs. He had no relationship with M.L. at the time. Talaga acknowledged that certain parts of the watermark (“001990AGALAT4824 julian.j”) found on the back of some of the nude photographs posted on the signs near GFL were familiar to him. In particular, “Agalat” was a name that he used on emails and on his Facebook account, “4824” were the last four digits of his cell phone number, and “Julian” was the name that he knew M.L. had used on the pornography website years ago.
iii) Additional evidence about the photographs
[28] At the trial judge’s suggestion, and with the consent of both parties, M.L. and Talaga were re-called at the end of the trial in order to clarify one issue. Exhibit 3C had been identified at trial by M.L. as the police property bag containing the pictures or posters that he had removed from various sign posts around GFL on July 25, 2014. Eight of these pictures or posters in the exhibit bag were made from the same photograph. It is a full frontal nude photo of M.L., against a plain background, with the words “Gay For Pay” printed across the bottom half of the photograph. There is also a ninth picture or poster found in the Exhibit 3C property bag. It is a different photograph of M.L. but it has the same “Gay For Pay” words printed across the bottom half of the photo in the same colour ink. In this photograph, M.L. is wearing only his underpants, while apparently talking on the telephone and standing in a bedroom, with some furniture and a duffel bag visible in the background.
[29] M.L. and Talaga were both asked about this latter photograph when they were re-called at the end of the trial. Neither witness had been asked about it in their previous testimony. M.L. testified that the photograph was taken by Talaga in about 2003. They were at the home of a girl who M.L. was living with at the time. Her name was “Alleza” and she had gone away on vacation at the time when Talaga came over and took the photograph. M.L. did not have a copy of the photograph. Talaga was the only person who had the photograph, to M.L.’s knowledge. This photograph was not part of M.L.’s online profile at the time when he was working for an internet website in 2001. M.L. confirmed that he pulled this picture or poster off a sign at one of the approximately six locations around GFL where he found the “Gay For Pay” pictures on July 25, 2014.
[30] Talaga testified that he did not take this photograph and it was not part of his library of photographs of M.L. He agreed that the photograph depicted M.L. but he did not recognize the photograph. He had no knowledge as to who posted it near GFL in July 2014 together with the words “Gay For Pay”. He had no recollection of M.L. having a girlfriend named “Alleza” around 2003.
C. ANALYSIS
i) The issue on appeal
[31] As set out above (at paras. 4-6), the sole issue on this appeal is whether the trial judge committed reversible error when he granted the remedy of re-opening and continuing the trial, rather than the remedy of a mistrial, at the end of the defence Application concerning Talaga’s right to testify. On behalf of the Appellant, Mr. Kapoor submits that a mistrial was the only appropriate remedy, given that the trial judge had previously found the Appellant guilty on a basis that included acceptance of the credibility and reliability of the two Crown witnesses. Mr. Kapoor’s submission is that a reasonably informed member of the public would perceive bias because the trial judge’s assessment of Talaga’s fresh exculpatory evidence at the re-opened trial would be affected by the previous findings of credibility and reliability that had resulted in a guilty verdict.
ii) The applicable law
[32] The governing principles relating to appellate review of a trial judge’s decision concerning the “extraordinary remedy” of a mistrial were recently summarized in [R. v. G.(A.), 2015 ONCA 159], 319 C.C.C. (3d) 441 at paras. 50-1 (Ont. C.A.):
As the trial judge correctly noted, a mistrial is a remedy of last resort and should be ordered only where necessary to prevent a miscarriage of justice. Before granting this extraordinary remedy, the court should consider and reject as inadequate other less extreme remedies, such as a mid-trial instruction: [R. v. Chiasson, 2009 ONCA 789] (Ont. C.A.), at para. 14; [R. v. Toutissani, 2007 ONCA 773] (Ont. C.A.), at para. 9; [R. v. Burke, 2002 SCC 55], [2002] 2 S.C.R. 857, at para. 77.
Because the determination of whether a mistrial should be granted is a matter within the discretion of the trial judge, an appellate court will only interfere with that decision if it is clearly wrong or based on an erroneous principle: Chiasson, at para. 14.
[33] In the context of an Application to set aside a guilty verdict, at the end of a judge alone trial and prior to sentencing, it is settled law that a mistrial is only one available remedy and that re-opening the trial and hearing further evidence is another available remedy. In [R. v. Kowall, 1996 ONCA 411], 108 C.C.C. (3d) 481 at 493-4 (Ont. C.A.), the Court stated the following:
We agree with the trial judge's disposition of the application to re-open the defence case although for somewhat different reasons.
The test for re-opening the defence case when the application is made prior to conviction has been laid down by this court in [R. v. Hayward], 86 C.C.C. (3d) 193 (Ont. C.A.). However, once the trial judge has convicted the accused a more rigorous test is required to protect the integrity of the process, including the enhanced interest in finality. It seems to have been common ground in this case that the most appropriate test for determining whether or not to permit the fresh evidence to be admitted is the test for the admissibility of fresh evidence on appeal laid down in [Palmer and Palmer v. The Queen], 50 C.C.C. (2d) 193 (S.C.C.) at page 205 (see [R. v. Mysko], 2 Sask. R. 342 (C.A.)). That test is as follows:
(1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases...;
(2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
(3) the evidence must be credible in the sense that it is reasonably capable of belief;
(4) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
These criteria provide helpful guidance to a trial judge faced with an application to reopen after conviction. In addition to the Palmer criteria, a trial judge must consider whether the application to reopen is in reality an attempt to reverse a tactical decision made at trial. Counsel must make tactical decisions in every case. Assuming those decisions are within the boundaries of competence, an accused must ordinarily live with the consequences of those decisions. Should the trial judge find that the test for reopening has been met, then the judge must consider whether to carry on with the trial or declare a mistrial. [Emphasis added].
[34] More recently, in [R. v. Arabia, 2008 ONCA 565], 235 C.C.C. (3d) 354 at paras. 47-52 (Ont. C.A.), the Court made it clear that the remedy of a mistrial, after a successful Application to set aside a verdict, is only to be granted in “the clearest of cases” and that “as a general rule” the trial judge will re-open, hear the fresh evidence, and then decide on a final verdict. Watt J.A., speaking for the Court, stated the following:
In Kowall, after findings of guilt had been recorded, the appellant sought leave of the trial judge to re-open the defence case to call several witnesses, including the appellant’s recently-discharged counsel. The trial judge heard the evidence proposed for admission, then decided it should not be received. This court upheld the trial judge’s decision, albeit for somewhat different reasons.
It seems apparent in Kowall that had the appellant been successful in his application to re-open the defence case, he would have invited the trial judge to continue the trial and to reconsider the prior findings of guilt in light of the further evidence. Nothing in Kowall suggests that a mistrial was sought as a primary or alternative remedy.
The authorities, like Kowall, which involve the proffer of further evidence after a finding of guilt has been recorded, contemplate two remedies:
i. re-opening of the defence case; and ii. declaration of a mistrial.
As a general rule, permission to re-open would be followed by setting aside the prior finding(s) of guilt, reception of the further evidence, together with any evidence offered by the prosecutor in reply, the submissions of counsel, and a decision on the adequacy of the prosecution’s proof in light of the new evidence. In some instances, of course, a decision to receive the further evidence might require declaration of a mistrial, or a similar conclusion may be warranted absent a decision on admissibility, for example where the proposed evidence was not disclosed in a timely way by the prosecutor.
Kowall and cases following its lead furnish trial judges with workable criteria the application of which will inform the decision on re-opening. But where re-opening is permitted and a decision made to allow the introduction of further evidence, the trial judge will then be required to determine whether to continue proceedings to verdict, or to terminate them prior to final decision. Kowall and subsequent cases do not explore the preferential ordering of available remedies, or articulate the factors according to which the trial judge is to decide which is the more appropriate remedy.
Trial judges are more likely to encounter mistrial applications before, rather than after verdict or judgment, and when sitting with a jury, rather than in judge alone trials. The underlying circumstances that ground mistrial applications prior to verdict are myriad, but often involve the introduction of inadmissible evidence or the intrusion of some trial or related event that puts trial fairness at risk or compromises the integrity of the decision-making process.
While there may be some uncertainty about the precise standard a judge is to apply in determining whether to declare a mistrial before verdict or judgment, it is well-settled that the authority to declare a mistrial should only be exercised in the clearest of cases. [R. v. R. (A.J.)], 94 C.C.C. (3d) 168 (Ont. C.A.) at 174; [R. v. Paterson], 122 C.C.C. (3d) 254 (B.C. C.A.) at paras. 93-98. There seems no reason in principle to apply any less rigorous standard to applications for the same remedy made after verdict or judgment. [Italics of Watt J.A. in original, underlining added for emphasis].
[35] The Appellant Talaga relies heavily on the decision of Trotter J., as he then was, in [R. v. Drysdale, 2011 ONSC 5451], 275 C.C.C. (3d) 219 (Ont. S.C.J.). After a judge alone trial at which the accused testified, Trotter J. disbelieved the accused’s exculpatory evidence and convicted him. In particular, the trial judge concluded that the accused was lying on one issue. That issue became the subject of further evidence received at the sentencing hearing. This new evidence heard at the sentencing hearing clearly supported the accused’s earlier account at trial in relation to the one issue on which Trotter J. had found that he lied (referred to as “the hoody issue”). The fresh evidence was tendered and admitted at trial and the earlier conviction was set aside. The Crown urged Trotter J. to continue with the trial and argued that the accused’s exculpatory evidence could still be rejected on different bases, separate and apart from the one issue on which Trotter J. had previously (erroneously) found that the accused had lied. Trotter J. disagreed with the Crown’s suggested approach and granted a mistrial, reasoning as follows (at paras. 27-9):
Despite the submissions of counsel, I decided that a mistrial was the only reasonable course of action in the circumstances. The problem with continuing the trial was that I had already made a very strong adverse finding of credibility against Mr. Drysdale, one that caused me to reject his evidence as a whole…
The Crown also urged me to come to the same conclusion about Mr. Drysdale’s evidence and the case as a whole by finding other reasons to disbelieve his evidence. But this would be an artificial and highly unsatisfactory exercise because I was very clear about what it was that caused me to disbelieve Mr. Drysdale’s evidence. Any attempt to re-build my credibility findings on a different footing would be disingenuous. The reasoning process would have to look something like this: “I said that the hoody issue caused me to reject all of Mr. Drysdale’s evidence, but what I really meant was that it was just one of the many things that caused me to reject his evidence.” This chain of reasoning could not be relied upon as authentic.
Let me put it another way. If I were to continue the trial and permit 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.
[36] Trotter J’s above reasoning in Drysdale was referred to with approval by the Court of Appeal in [R. v. Griffith, 2013 ONCA 510], 5 C.R. (7th) 68 at paras. 40-42 (Ont. C.A.). There are now a number of trial decisions following Drysdale and granting a mistrial, after setting aside a guilty verdict on the basis of fresh evidence. In all of these cases, the trial judge had made findings of credibility (either in favour of the complainant or against the accused) and had convicted. In addition, the fresh evidence went directly to the correctness of that earlier finding of credibility. As Garton J. put it in [R. v. Hung, 2019 ONSC 124] at para. 93:
I find that the only reasonable course of action in the circumstances is to declare a mistrial. The difficulty with continuing the trial is that I have made very strong adverse findings of credibility against Mr. Hung. If I were to re-evaluate his credibility in light of the fresh evidence and convict Mr. Hung, he and reasonably informed members of the public would wonder whether that conclusion was tainted by my prior adverse findings of credibility. Similar concerns would arise if I changed my views and acquitted. Whatever result I reached would be open to question. In these circumstances, the only appropriate remedy is to declare a mistrial.
See also: [R. v. S. (X.X.), 2005 Carswell Ont 8259 (S.C.J.)]; [R. v. A.G., 2018 ONSC 3043] at para. 85; [R. v. Duro, 2018 ONSC 285] at para. 26; [R. v. Carter-Texeira, 2019 ONCJ 838] at paras. 39-40.
[37] On the other hand, in a case where the accused had not testified before the trial judge convicted, and where the fresh evidence was the accused’s proffered post-verdict testimony, the trial judge held that the appropriate remedy was to re-open and continue the trial. It was not “the clearest of cases” requiring the remedy of a mistrial because the fresh evidence did not require the trial judge to reconsider a prior adverse finding of credibility against the accused. See: [R. v. Curreri, [2017] O.J. No. 3457 (S.C.J.)].
iii) The particular context in this case
[38] Before applying the principles that emerge from the above authorities, there are three important considerations that are relevant to the trial judge’s decision to continue with the trial and not grant the remedy of a mistrial in this particular case. The first consideration emerges from the trial judge’s findings on February 10, 2017, and the issues that counsel had put before him at that stage, when he first found Talaga guilty. The second consideration emerges from the trial judge’s findings on April 27, 2018, and the issues that were put before him at that stage, when he granted Talaga’s Application concerning his right to testify. The third consideration emerges from the trial judge’s findings on March 1, 2019, after Talaga had testified and had raised certain issues at the re-opened trial and the trial judge again found him guilty. It is in the context of these three stages of the proceedings, and the issues that arose and were decided at each stage, that the appropriateness of not declaring a mistrial must be assessed. Equally important to the appropriateness of the trial judge’s decision concerning the remedy of a mistrial, is an understanding of what was not in issue at the various stages of this particularly lengthy and protracted trial.
[39] The first of the above contextual circumstances concerns the issues that were before the trial judge and that he decided on February 10, 2017, after he had heard the Crown’s case, and after the defence had called no evidence. Defence counsel made his submissions first and they were brief because he addressed only one element of the s. 264(2)(b) offence, namely, the requirement that the accused “repeatedly communicate” with the complainant. Counsel noted that the pleadings particularized the offence date as “between the 25th day of July, 2014 and the 28th day of July, 2014”. Accordingly, the motor vehicle driving incident that occurred on July 23, 2014 was not part of the offence charged. The only relevant conduct was “the posting of the pictures” on July 25, 2014 and counsel submitted that it was not “repeated communication”. He cited two Ontario Court of Appeal decisions in support of this argument, which he acknowledged to be a “technical” one. He concluded: “So Your Honour, even if you were to find that Mr. Talaga was the individual who posted these pictures, it’s not enough to satisfy s. 264(2)(b).”
[40] The Crown inquired as to whether the defence was conceding the element of identity. Counsel made it clear, and the trial judge stated, “He is not conceding that you have proven beyond reasonable doubt with respect to who posted the pictures.” As a result, the defence did not concede the other elements of the offence, including the element of identity, but simply made no submissions.
[41] In his Reasons for Judgement, the trial judge accurately set out the five elements of the s. 264(2)(b) offence. He then made findings that the two Crown witnesses, M.L. and R.K., were generally credible and reliable on the basis of various observations about the manner and content of their testimony and the substantial corroboration provided by the emails and the physical evidence. Finally, the trial judge identified the important issues in the case relating to the elements of the offence and, after analysing each issue, made findings that the elements had all been proved beyond reasonable doubt. There is no suggestion of error in any of this reasoning, neither on the present appeal nor when Talaga changed counsel and brought an Application seeking to set aside the verdict on the basis of his right to testify in his own defence.
[42] For purposes of the present appeal which concerns the decision not to grant a mistrial, what is important about this February 10, 2017 decision of the trial judge (convicting Talaga), is that there was only one issue at trial that was substantially in dispute. That one issue was the “technical” argument about the element of “repeated communication”. The trial judge resolved this one disputed issue objectively and analytically, on the basis of the admitted real evidence and without relying on any of his earlier findings concerning the two Crown witnesses’ general credibility and reliability. He reasoned as follows:
I disagree multiple postings of a photograph in different locations is a single communication. The act of communicating directly with the complainant occurred each time the complainant observed a posted photograph in a different location. Further, more than one type of photograph was posted. And further still, the photographs all bore the words, “Gay For Pay”, a further communication to the complainant. I find each of these postings of different photographs in multiple different locations amount to repeated communications.
This finding concerning this one element of the offence was never put in issue when the trial was later re-opened and it was not challenged on appeal.
[43] The trial judge’s favourable findings about the general credibility and reliability of the complainant M.L. were important when he came to three further elements, namely, “harassment”, “fear for safety,” and the “reasonableness” of that fear. He concluded that the Crown had proved all three elements. However, these three elements were not substantially in dispute at the time (counsel made no submissions in relation to them). More importantly, they were never put in issue when the trial was later re-opened and Talaga testified. In addition, these three findings were not challenged on appeal.
[44] The one element that was put in issue when the trial re-opened, and that the trial judge had decided in this February 10, 2017 decision finding Talaga guilty, was the element of identity. The trial judge set out nine items of circumstantial evidence and concluded that “there is no doubt Mr. Talaga posted the naked photographs of the complainant on poles and road signs in the area of the complainant’s employer.” He described the cumulative effect of this body of circumstantial evidence as “overwhelming” in relation to the issue of identity. When Talaga changed counsel and brought an Application seeking to set aside the verdict on the basis of his right to testify, he was seeking to dispute this issue of identity through his own testimony. During submissions on the Application, his experienced and capable new counsel acknowledged that the Crown’s evidence was “extremely strong”. She stated that “it is clear that Your Honour had no choice on the evidence but to convict.” Talaga was present in Court and would have heard this submission. The nine items of circumstantial evidence relied on by the trial judge on this issue of identity (described by the judge and new counsel as either “overwhelming” or “extremely strong”) were as follows:
i) Talaga had “exclusive access” to the posted photographs and he had previously sent nude photographs of M.L. to the shared email address used by both M.L. and R.K.;
ii) The posting of the photographs occurred at a time that was shortly after the withdrawal of the Brampton charge and termination of Talaga’s terms of bail, which had included a prohibition against communication with M.L.;
iii) The location of some of the posted photographs was “in the immediate area” of M.L. and Talaga’s workplace;
iv) The location of other photographs was along the route to the GFL dump, “a route taken daily by over fifty garbage trucks” from M.L. and Talaga’s workplace;
v) The “elevated height” at which the photographs were posted on traffic signs, which was “at the height of the driver of a garbage truck”;
vi) The term “Gay For Pay” written on the photographs “was used by the accused to refer to the complainant” and was consistent with “the nature of the relationship between the accused and the complainant – not one of a romantic relationship but one based on monetary payment for sexual services”;
vii) The watermark on the back of some of the posted photographs included the word “AGALAT” which was Talaga’s name spelled backwards and was a name “used by” Talaga, including “to identify himself in emails sent to the complainant” ;
viii) The watermark on the back of some of the posted photographs also included the name “Julian” which had been used by M.L. “for a very short time many years earlier, when he was engaged in internet porn”. This name, and its past association with the website, was known to Talaga as he referred to it in one of the late 2012 emails “sent to the complainant”; and
ix) On earlier occasions Talaga had “threatened to post the photographs and had electronically posted naked photographs of the complainant as an attachment” to emails that he sent to M.L. and R.K.’s shared email account.
[45] Two of the above nine items of circumstantial evidence depended, in part, on M.L.’s testimony and credibility. As will be explained below, when Talaga came to testify at the re-opened trial, he only disputed these two items of circumstantial evidence (the first and sixth set out above). The other seven items of circumstantial evidence were substantially undisputed throughout the trial. Accordingly, the remedies issue that arose once the trial judge had decided to allow the Application and set aside the verdict, was whether he could be seen to fairly and objectively re-evaluate the above body of circumstantial evidence, but with Talaga’s testimony now included in relation to two of the nine items.
[46] The second contextual circumstance specific to this case involves the issues that were before the trial judge on April 27, 2018, when he allowed the defence Application to set aside the verdict on the basis of Talaga’s right to testify. As set out above (at paras. 3-4), that Application involved a substantial attack by Talaga on his first counsel in relation to two issues, as follows: first, whether Talaga ever understood that the decision to testify “was his alone to make”; and second, whether Talaga had “the opportunity to make an informed choice” not to testify on the morning of the second day of trial. Both Talaga and his first counsel filed affidavits, both witnesses testified on the Application for two days, and submissions were heard on a third day. The Application was vigorously contested, Talaga was cross-examined for almost a full day, and there were live issues of credibility and reliability concerning both Talaga and his first counsel.
[47] The trial judge released written Reasons on April 27, 2018, finding in favour of Talaga on both of the above two issues, which he had summarized as follows:
The Applicant alleges that his trial counsel was ineffective in his representation of him in a number of ways. The core complaint is a claim the Applicant’s decision not to testify was not informed. The complaint has two parts.
- The first part, he claims he was never informed the decision to testify was his decision alone to make.
- The second part is his acquiescence to not testify, on the advice of his counsel, was not an informed one.
[48] For purposes of the present appeal, which concerns the decision to re-open and continue the trial rather than grant a mistrial, the effect of this contextual circumstance emerging from the April 27, 2018 proceedings is relatively straightforward. A reasonable observer assessing the perceived fairness of that mistrial decision would take into account the fact that the trial judge had found in Talaga’s favour on a vigorously contested dispute between Talaga and his first lawyer.
[49] The third contextual circumstance involves the issues that eventually emerged at the re-opened trial, after Talaga had testified, and how the trial judge addressed them. I have already summarized Talaga’s evidence above (at paras. 18-30). In relation to the nine circumstances previously relied on by the trial judge concerning the disputed issue of identity (set out at para. 44 above), Talaga essentially admitted seven of them. He disputed the first circumstance as he denied “exclusive access” to the one most prominent photograph posted on a number of signs near the GFL workplace. However, this dispute was partial at best because Talaga acknowledged personal possession of this one photograph and he testified that the internet source of the photograph no longer existed. In addition, he acknowledged the related fact relied on by the trial judge in relation to this first circumstance, namely, that he had previously sent two nude photographs of M.L. to the email address that M.L. and R.K. shared. Talaga also disputed the sixth circumstance, as he denied using the term “Gay For Pay” in reference to M.L. and he insisted that their relationship was “romantic” and was not based on mere monetary transactions. However, this disputed point was also partial at best because Talaga acknowledged being familiar with the term “Gay For Pay”, he agreed that its meaning described M.L.’s view of their relationship, and he acknowledged calling M.L. a “prostitute” and a “buy-sexual” in an angry late 2012 email which “characterized the relationship as sex and drugs for money.”
[50] In the result, there was little in Talaga’s testimony that undermined the “overwhelming” or “extremely strong” circumstantial evidence relating to the element of identity, that the trial judge had previously assessed in his February 10, 2017 Reasons. The effect of Talaga’s testimony amounted to little more than a bare denial of this essential element. Furthermore, Talaga’s testimony actually strengthened the Crown’s circumstantial case in relation to identity because he admitted a course of conduct towards M.L. in late 2012 that was “bitter”, “hurt” and “angry” (see para. 21 above), he acknowledged believing that he had the right to distribute his personal sexual photographs of M.L. (see para. 22 above), he acknowledged having distributed the photographs on occasion in order to communicate his “power” over M.L. and his ability to “embarrass” M.L. (see para. 24 above), he agreed that his purpose in mailing the “pink dildo” to R.K.’s stepfather’s address was to “torment” and “upset” M.L. (see para. 25 above), he acknowledged being involved in a “tit for tat” exchange with M.L. near the GFL yard on July 23, 2014, just two days before the nude “Gay For Pay” photographs were posted nearby (see para. 26 above), and he acknowledged his connection to parts of the watermark (“AGALAT4824 julian”) found on some of the “Gay For Pay” photographs, a connection which he could not explain (see para. 27 above).
[51] At the end of the re-opened trial, Talaga’s new counsel filed written submissions in which she twice stated: “The sole issue that the Court must determine is whether or not the Crown has established beyond a reasonable doubt that Mr. Talaga is responsible for posting the nude photographs.” She made no submissions on any of the other elements of the offence. The trial judge repeated this concession at the start of his March 1, 2019 Reasons, stating that the “sole issue in this case is the identity of the person who posted the photographs.” As a result, these long protracted proceedings came down to one narrow issue. The trial judge’s earlier decision, to continue the trial and not declare a mistrial, must be assessed in this context.
[52] In relation to that one disputed issue, the trial judge’s March 1, 2019 Reasons began and ended with a repeated statement that “the case against Talaga is entirely circumstantial.” His Reasons analysed the Crown’s large body of circumstantial evidence, as supplemented by the new evidence heard at the re-opened trial. Much of the circumstantial evidence was not disputed, or it involved drawing inferences from real and demonstrative evidence (the posted “Gay For Pay” photographs and the angry emails). To the extent that some of the items of circumstantial evidence depended in part on findings of credibility and reliability, the trial judge repeated his earlier favourable assessment of the general credibility and reliability of M.L. and R.K., but now supplemented by additional evidence heard at the re-opened trial. He set out a lengthy and detailed analysis of Talaga’s general credibility and reliability, finding as follows: he was “evasive and combative”; his evidence was internally inconsistent and incoherent on certain points; he was “contradicted by his emails”; he harboured “a deep animus towards [M.L.]”; and he was defensive and evasive about the authenticity of the emails. The trial judge completely rejected Talaga’s exculpatory evidence, while noting certain areas where his evidence strengthened and supported M.L. and R.K.’s evidence. Based on all the evidence “considered together”, the trial judge was satisfied “beyond reasonable doubt Talaga posted the pictures.” No error has been alleged on appeal in relation to any of these Reasons.
iv) Application of the law to the facts of this case
[53] The line of authority summarized above (at paras. 32 to 37) makes it clear that two alternate remedies are available after a trial judge has admitted fresh evidence and set aside a previous guilty verdict. In my view, when deciding between the two remedies – to re-open and continue the trial or declare a mistrial – the significant factors to be considered in this particular case include the following:
- At the time of the initial verdict finding Talaga guilty in February 2017, there was only one narrow “technical” issue that was substantially in dispute. That issue was no longer in dispute at all by the end of the re-opened trial. In addition, no findings of credibility were made against Talaga at this stage because he had not yet testified. The findings of credibility and reliability that were made in favour of the complainant M.L., related mainly to three elements of the offence that were not substantially in dispute at the time, and that were not in dispute at all by the end of the re-opened trial. In other words, little had been decided at this February 2017 stage that could compromise the trial judge and justify a mistrial. This first factor distinguishes the case from the Drysdale line of authority;
- The trial judge’s decision on the defence Application in April 2018, to re-open and continue the trial rather than declare a mistrial, was made after he had made findings favourable to Talaga (and unfavourable to Talaga’s first lawyer) in relation to Talaga’s right to testify in his own defence. At a minimum, this indicated that the trial judge had an ability or inclination to be open and fair-minded in relation to Talaga’s testimony on contentious issues. This second factor also distinguishes the case from the Drysdale line of authority;
- In relation to the one issue on which Talaga wanted to testify at the re-opened trial, namely, the identity of the person who posted the “Gay For Pay” photographs, the Crown’s evidence against him was entirely circumstantial. Furthermore, Talaga admitted (or did not dispute) seven of the nine most important items of circumstantial evidence and he only partially disputed the other two items. In other words, the trial judge’s previous favourable finding concerning M.L.’s general credibility and reliability had little bearing on this one disputed issue. Rather, the issue turned on the trial judge’s ability to assess the cogency of the circumstantial inferences in the context of Talaga’s fresh evidence, which was essentially a bare denial that he was the person who had posted the “Gay For Pay” photographs. This third factor further distinguishes the case from the Drysdale line of authority;
- The Application brought by Talaga, to set aside the original verdict was initially described orally by new counsel as an “application to re-open the case for the purpose of calling evidence” (see para. 2 above). No mention was made of a mistrial. Some months later, the formal written Application was filed by new counsel (see para. 3 above). It sought either of two alternative remedies, namely, a mistrial or “an order re-opening his [Talaga’s] defence, thus allowing him to call fresh evidence.” During oral argument of the Application, Talaga’s new counsel submitted that “the appropriate remedy in this case is a mistrial” because of the trial judge’s favourable “credibility findings” (concerning M.L. and R.K.) which might have to be revisited at a re-opened trial. However, counsel acknowledged the trial judge’s “jurisdiction to re-open the trial” and never withdrew the request in her formal Notice of Application seeking this alternative remedy. Counsel also acknowledged during submissions on the Application, in Talaga’s presence, that the Crown’s case was “extremely strong.” It can be seen that Talaga and his new counsel knowingly sought, in the alternative, the remedy of a re-opened trial with the right to testify in the face of an “extremely strong” Crown case. This is precisely what ensued;
- The trial judge’s analysis of Talaga’s general credibility and reliability, at the end of the re-opened trial, was lengthy, detailed, and persuasive. No error is alleged in that analysis or in any other aspect of the trial judge’s Reasons for conviction. In other words, the only issue is the appearance of fairness or the appearance of lack of bias; and
- Finally, the Appellant’s main argument is that the trial judge could not appear to be fair, after setting aside the guilty verdict and re-opening the trial, because the spectre of the prior verdict still somehow stood against Talaga and, therefore, had to be overcome by his testimony. As Mr. Kapoor put it at para. 21 of his Factum, which sets out what he described as the essence of his submission:
In the circumstances of this case, the trial judge failed to appreciate that a reasonably informed member of the public would conclude that Mr. Talaga would have to prove his innocence to the judge that had already found him guilty. Had he done so, thereby properly instructing himself, he would have declared a mistrial. Realistically, a reasonably informed member of the public would not accept that the trial judge’s assessment of Mr. Talaga’s evidence would be unaffected by his prior conclusion that the Crown’s evidence established the case beyond a reasonable doubt. [Italics of Mr. Kapoor].
In my view, this submission cannot be correct. It would mean that in virtually every case where a trial judge has convicted an accused, and has then set aside the verdict and re-opened on the basis of fresh evidence, there would have to be a mistrial. That is clearly not the law. The line of authority summarized above takes a much more nuanced and tailored approach to the two available remedies. The law is clear that there will be cases where the particular contextual circumstances are such that it is appropriate to continue the trial and not grant the “extraordinary” remedy of a mistrial. In addition, Mr. Kapoor’s submission turns the decision to set aside the earlier guilty verdict into a trap because that earlier verdict continues to live on in the mind of the reasonable observer and is never truly set aside.
[54] In all the circumstances of this particular case, I am satisfied that there was no reversible error when the trial judge decided on the remedy of re-opening and continuing the trial rather than declaring a mistrial. I have already set out the trial judge’s Reasons (at para. 4 above) in relation to this discretionary decision concerning the appropriate remedy. The only issue in dispute at the end of the trial was narrow, no significant findings of credibility or reliability had been made, and the resolution of the one issue in dispute turned on assessing the cogency of circumstantial inferences and the credibility and reliability of Talaga, an entirely new trial witness who the trial judge had already found favour with on the earlier Application. There was no appearance of unfairness or bias in continuing with the trial in these particular circumstances.
D. CONCLUSION
[55] For all the above reasons, the appeal against conviction is dismissed.
M.A. Code J.
Released: June 12, 2020