ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CHAD WRAY-McCOMBS
M. Dean, for the Crown
V. Rishea, for Chad Wray-McCombs
HEARD: November 23, 2021
REASONS FOR DECISION ON DEFENCE APPLICATION FOR MISTRIAL
gibson, J.
Overview
1Chad Wray-McCombs is being tried by judge and jury on a two-count Indictment. He is charged with aggravated assault contrary to s.268 of the Criminal Code, and discharging a firearm with intent to endanger life, contrary to s. 244(1) of the Criminal Code.
2The Crown alleges that Mr. Wray-McCombs shot Jermaine Peart with a shotgun on April 24, 2019, in the course of a drug deal in an alleyway in downtown Brantford.
3Four witnesses called by the Crown have been heard to this point in the trial: the investigating police officer, Sgt. Whitworth; the person shot on April 24, 2019, Jermaine Peart; his girlfriend Jessica Froman; and the cab driver who transported Chad Wray-McCombs from Ms. Froman’s residence in Brantford to the vicinity of the alleyway where he was shot, and subsequently back to her residence after the shooting.
4Nine witnesses remain on the Crown’s list of witnesses who may be called at this jury trial.
5Both Jermaine Peart and Jessica Froman were vigorously cross-examined by defence counsel before the jury. One of the subjects in dispute was Ms. Froman’s contention that she had taken screen shots of a video exchange on a cellphone shortly after the shooting involving another person, identified by her as “Maya,” herself, and the accused person Chad Wray-McCombs. It was suggested to both Mr. Peart and to Ms. Froman by defence counsel that they were lying in their contention that there had been such an exchange and that screen shots were taken, because there had been no disclosure of such evidence to the defence.
6Counsel have informed me this morning that, subsequent to these two witnesses giving evidence yesterday, the police have provided to Crown counsel copies of two screen shots that were in fact provided by Ms. Froman to the police. One apparently depicts a person wearing a red shirt holding a shotgun. The second apparently depicts a male person who resembles Chad Wray-McCombs. These have now been provided to defence counsel. They had not previously been disclosed to the defence.
7The Defence now brings an application for a mistrial.
Position of the Defence
8Defence counsel submits that he made a tactical choice in good faith on the basis of the disclosure received to take an aggressive approach in cross-examining Jermaine Peart and Jessica Froman, and in suggesting that they were lying. Now that it appears that Ms. Froman was not lying on this point, he submits, he cannot “unring that bell” before the jury, and that the accused person Chad Wray-McCombs may be prejudiced in his defence by the jury inevitably speculating about the absence of such a contention in his final submissions. He submits that he “risks losing the jury,” and that the jury’s negative assessment of him as counsel may accrue to the detriment of his client in their ultimate assessment of this case.
9The failure of the police and the Crown to provide disclosure has ultimately put defence counsel in an ethical bind, he submits. He cannot ethically ignore this development in any further submissions. His choice is to ignore this in his final submissions, which the jury would remark on, or make “mundane” submissions. This has resulted in a significant reversal of his trial strategy, which was occasioned by a failure of the police and the Crown to make required disclosure in a timely fashion. This, he contends, prejudices Mr. Wray-McCombs’ right to make full answer and defence.
10Defence counsel submits that no remedy short of a mistrial would suffice. An adjournment would not avail, and an instruction by the trial judge would inevitably be convoluted and might make matters worse rather than better. This situation constitutes, he submits, one of the clearest of cases where a mistrial is the only remedy.
Position of the Crown
11Crown counsel disagrees. He submits that this does not constitute one of the clearest of cases where a mistrial is the only remedy that will suffice. He readily concedes that defence counsel’s cross-examination of Jermaine Peart and Jessica Froman was very effective in exposing other weaknesses and contradictions in their evidence, and that it would still be possible for defence counsel to ethically make submissions respecting other weaknesses in their evidence. He says that the Crown does not intend to submit these still photos as evidence. He submits that this is not one of the cases where the police and the Crown’s disclosure shortcomings would render the trial unfair or present a real danger of prejudice to the defence.
Defence reply
12Defence counsel in reply submits that the Crown’s proposal is the problem not the solution: he would be constrained and embarrassed in the submissions that he could make, and that this could accrue to the detriment of his client in the jury’s assessment of the evidence.
Law
13The Crown has a duty to disclose all relevant material, including exculpatory as well as inculpatory evidence: R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326. The Crown has a duty to obtain from the police – and the police have a corresponding duty to provide to the Crown – all relevant information and material concerning the case.
14There are broad common-law powers to declare a mistrial: R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857. At para. 75, the Court in Burke stated:
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.
15The test ultimately boils down to whether there is a real danger of prejudice to the accused or danger of a miscarriage of justice.
16Counsel have brought four cases to my attention.
17In R. v. L.A.T., 1993 CanLII 3382 (ON CA), [1993] 14 O.R. (3d) 378 (Ont. C.A.), Lacourciere J.A. declared for the Court at para. 9 that “the proper test on an application for a mistrial is, of course, whether the appellant’s ability to make full answer and defence has been impaired. Did the failure to disclose create such prejudice that it cannot be said with certainty that the appellant received a fair trial?”.
18In R. v. Peterson, (1996) 166 C.C.C. (3d) 64 (Ont. C.A.), Osborne J. A. declared for the Court at para. 66:
In my view, the materiality of the non-disclosure should be considered and measured in much the same way as the materiality of errors said to have been made by counsel at trial in cases where the appellant contends that he was denied the effective assistance of counsel at his trial. The court’s core concern in both cases is whether there has been a miscarriage of justice….Thus, to show prejudice as a consequence of the non-disclosure, the appellant must satisfy the court that there is a reasonable probability that, had there been proper disclosure, the result might have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
19In R. v. Toutissani, 2007 ONCA 773, McPherson J.A. for the Court declared at para. 9 that “ I explicitly endorse the application judge’s statement that “[t]he declaration of a mistrial, like the declaration of a stay, should granted only as a last resort, in the clearest of cases and where no remedy short of that relief will adequately address the actual harm occasioned.”
20In R. v. Chiasson, 2009 ONCA 79, the Court declared at para. 14:
A mistrial is appropriate where that remedy is necessary to prevent a miscarriage of justice; R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857 at para. 75. Other less extreme remedies, such as an appropriate mid-trial instruction, should be considered and rejected as inadequate before a mistrial is granted: R. v. Toutissani, 2007 ONCA 773, [2007] O.J. No. 4364. The determination of whether a mistrial should be granted is ultimately in the discretion of the trial judge. As with other discretionary decisions, this court will not interfere with the decision of the trial judge except where the court concluded that it is clearly wrong or based on some erroneous principle.
21Another relevant case, not mentioned by counsel, is R. v. Oparah, 2015 ONSC 1585, in which it became apparent during the trial that there was inadequate disclosure. Justice Bielby held that a mistrial rather than an adjournment was appropriate where the defence had prepared its case based on the disclosure made before trial and the trial was at a very late stage.
Analysis
22The point of departure for analysis in this case is to note the obligation of the police and the Crown to make timely disclosure of all relevant evidence.
23There can be no dispute that the evidence concerned in this case, the still videos that may corroborate the evidence of Jessica Froman and possibly that of Jermaine Peart at least to some extent, are highly relevant and may be central to the credibility assessment of the jury as trier of fact in this case.
24I find that the police and the Crown have failed in their duty to make timely and complete disclosure, and that this has indeed had a direct impact on the defence case.
25I accept the submission of defence counsel Mr. Rishea that he made a tactical choice in good faith in his approach to cross-examination of two crucial Crown witnesses, and that the “bell cannot be unrung” before the jury in respect of his assertion that they were lying in their evidence on this point.
26The materiality of the non-disclosure in this case is significant.
27There is a reasonable probability that, had the Crown complied with their disclosure obligations, defence counsel would have taken a different approach, and this dilemma would not have arisen.
28But, the horse is out of the barn. The genie cannot now be put back into the bottle.
29There is a real danger of prejudice to the accused, as well as a danger of a miscarriage of justice should the trial continue.
30A mistrial is a remedy of last resort. I have considered the lesser remedies of an adjournment or an instruction to the jury.
31An adjournment would not avail in this instance. It would do nothing to remedy the problem.
32A mid-trial and/or final instruction by the trial judge to the jury in this instance would be difficult to craft, and it is not clear what could constructively be said. It is likely to inevitably be convoluted, confusing, and might well do more harm than good.
33The application is not premature. The calling of further witnesses by the Crown will not change the dilemma posed.
34I note the similarities between the situation in this case, and that in Oparah, where the trial judge found that a mistrial was the appropriate remedy.
35I find that this is one of the cases where no remedy short of a mistrial would adequately address the concerns that arise.
36This is a most unfortunate outcome. But it should be clearly understood that it arises from the failure of the police, and thus by necessary consequence of the Crown, to make required disclosure in a timely fashion, which has had a significant negative impact on the ability of the accused person to exercise his constitutional right to make full answer and defence.
37I must also address one submission of the Crown that has potentially disturbing implications. Crown counsel suggested that defence counsel could make submissions that effectively highlighted the other shortcomings in the evidence of these two witnesses, and not engage ethical dilemmas for defence counsel, and suggested a way to do this.
38I wish to be very clear on this point. It is not for the Crown, nor the Court, to impose constraints which dictate the boundaries of legitimate submissions by defence counsel. Neither the Crown nor the Court can dictate the defence strategy. Neither the Crown nor the Court know the full extent of the evidence potentially available to the defence, nor what other considerations may be in play in defence counsel’s strategic evaluation of the case, or the intended tactical approach to the examination of witnesses.
39The right of an accused person to make full answer and defence cannot properly be constrained in this fashion. Nor is it appropriate for external actors, necessarily without full knowledge of what information is in the possession of defence counsel, to prescribe counsel’s assessment of their ethical duties in such a circumstance. The problem arose because of the failure of the police and the Crown to make timely disclosure. The problem is ultimately of their creation. In such a circumstance, having created the dilemma, it is not for the Crown to dictate the tactical approach of defence counsel, nor of how for defence counsel to assess their ethical obligations. The shortcomings of Crown disclosure should not require defence counsel to engage in contortions.
Order
40The application for a mistrial is granted.
M. Gibson J.
Dated: November 23, 2021