R. v. Q.T.D., 2023 ONSC 5260
Court File and Parties
COURT FILE NO.: CR-22-119 DATE: 2023 09 18 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HIS MAJESTY THE KING – and – Q.T.D.
Counsel: A. Khoorshed, for the Crown S. Reid, for the Accused
HEARD: September 18, 2023
Publication Restriction Notice
Publication of Any Information Tending to Reveal the Identity of the Complainant Herein is Prohibited under s.486.4 of the Criminal Code of Canada.
Reasons for Judgment
Ruling on Adjournment Application
Kurz J.
Introduction
[1] The trial in this matter was scheduled to commence this morning with jury selection.
[2] Arrangements were made such that the jury panel was not placed in the courtroom in which jury selection was scheduled to take place. Rather, the jury panel was placed in another courtroom and the basement cafeteria of this courthouse, where they were connected to my court room by audio and video feed. This set-up was arranged to deal with a challenge for cause that was scheduled to take place before me, to which the larger panel should not be privy. It also ensured that the jury would not see the Accused brought into court by correctional services officers.
[3] During the course of pre-selection discussions, before the full jury panel was able to hear our discussions, Mr. Reid for the defence raised the issue of the timeliness of the delivery of the Accused to court from the nearby Maplehurst prison.
[4] At some point after my preliminary discussions with counsel, I stepped away from the court to look into certain matters that counsel had raised. When I returned, the Accused was present. Mr. Reid noted that his client had been delivered from Maplehurst to the courthouse at 9:45. I continued with further pre-selection discussions with counsel when it was brought to my attention that the jury panel, could overhear our discussions, as the audio-visual system connecting them to the courtroom was turned on and connected.
[5] At Mr. Reid’s request, I questioned three court services officers (“CSO’s”) who had been present in the other courtroom and the cafeteria, to determine whether they had been able to overhear our discussions about Maplehurst. Two CSO’s had not heard it, although one was out of the courtroom when the discussion took place. The third could clearly hear our discussions regarding the Accused’s pretrial incarceration.
[6] After some time to speak to his client, Mr. Reid moved for a mistrial or adjournment of this trial. He pointed out the lengths taken to ensure that the jurors were not aware of the fact of the Accused’s pretrial incarceration. They include civilian dress and the consent order to have the Accused sit at counsel table. In addition, as set out above, I note that the arrangement of the jury panel outside of the courtroom ensures that they do not see the Accused brought in by correctional officers.
[7] In his argument, Mr. Reid warned of the risk of moral prejudice should the jury feel, by reason of the Accused’s pretrial incarceration, that he is of bad character and thus more likely to be guilty of the offences he faces. Mr. Reid anticipated the Crown’s argument that a pretrial instruction would be sufficient, pointing to the comments of Coroza J. as he then was, in R. v. R.K., 2020 ONSC 2568, at para. 49. There, Coroza J., wrote in the context of an application for severance of counts on the basis of similar fact evidence:
Jury instructions can reduce the risk but the risk of moral prejudice remains…
[8] Mr. Reid argued that R.K. may be a case about a similar fact application, but the prejudice here is similar. It arises from the fact that the jury is now aware that the Accused is in pretrial custody. It may be more difficult for the jurors to put that fact out of their minds than other matters that may be the subject of a pre-trial or mid-trial instruction.
[9] Mr. Khoorshed argued that a pretrial instruction which cites but does not emphasize the fact of the Accused’s pretrial incarceration would be sufficient to deal with any prejudice he may suffer from the disclosure of his incarcerated status. He cites two cases where such a finding was made: R. v. Johnstone 2010 ONSC 621 and R. v. Hayes, 2020 ONCA 284. In both cases, the revelation to the jury of the accused’s pretrial incarnation was cured by a midtrial instruction. Mr Khoorshed argued that if I were to include such an instruction during the course of the multitude of my other pretrial instructions, that would cure the disclosure. It would be seen as a normal part of my instructions and would not highlight the fact that the Accused is presently in prison, Mr. Khoorshed opined that we do not know what the jury heard, as many may not have been paying attention.
Analysis and Decision
[10] In considering the arguments of both sides, I find, first of all that the application is properly one for an adjournment of the trial rather than a mistrial. That is because the trial has yet to begin. The Accused was not arraigned, and no jurors were selected.
[11] Further, I find that it is in the interests of justice to adjourn this trial for the following reasons:
Unless I question each prospective juror in the manner I would for a Parks challenge, I could not tell for sure what they heard. But that questioning would be self-defeating as it would emphasize to the jury the fact that the Accused is imprisoned.
While inadvertent, the disclosure raises the risk of moral prejudice based on propensity reasoning. Writing for the Ontario Court of Appeal in R. v. J.A., 2009 ONCA 177 at para. 26, Borins J.A. described the risk that moral prejudice poses to fair trial rights as follows:
Moral prejudice concerns the risk that the evidence might lead to a conviction on nothing more than "bad personhood". In other words, the trier of fact may find the accused guilty not because of the probative value of the evidence regarding the issue at trial, but rather because the evidence establishes that the accused is a bad person deserving of punishment. Reasoning prejudice and moral prejudice raise legitimate concerns in a jury trial…
This trial has not yet begun. That fact distinguishes this case from the Johnstone and Hayes cases, where the issue arose in either the middle of the trial (Johnstone) or “at the end of proceedings“ (*Hayes* at para. 93). Thus, the calculus is different here in that no trial time will be lost, no witness would be required to testify yet again if I were to adjourn this trial.
In *Johnstone*, at para. 3, the defence conceded that the reference to the Accused being in custody was curable by a midtrial instruction. A similar concession was made by the defence in Hayes, where counsel for the defendant “was satisfied with the [midtrial] instruction and did not bring an application for a mistrial”: para. 96. That is not the case here.
This court can offer dates that are not very far out, including dates in November, 2023. Those dates include November 14 -17 and 20-22, 2023. They do not impinge in the Accused’s right to a timely trial as his first Jordan date is in April 2024.
[12] For the reasons cited above, I grant the motion and adjourn this trial to November 14, 2023, continuing to November 22, 2023.
[13] I will select a jury on November 14, 2023. The Accused will be remanded to that date at 9:00 a.m.
Kurz J. Released: September 18, 2023