R. v. Malabre, 2024 ONSC 1515
COURT FILE NO.: CR-24-002 DATE: 2024/03/15
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING Applicant – and – MICHEAL MALABRE Respondent
COUNSEL: Robin Bellows, for the Crown Thomas Evangelista, for the Accused
HEARD: February 23, 26, 27, and 28, 2024.
CORRECTED REASONS FOR DECISION Corrections are listed on page 8
M.G. ELLIES J.
REASONS FOR DECISION ON MISTRIAL APPLICATION
OVERVIEW
[1] The accused was tried by a jury on charges that included possession of fentanyl for the purpose of trafficking and possession of the proceeds of crime. The charges resulted from the execution of a search warrant in a basement apartment in Parry Sound in which the accused and three others were found.
[2] The central issues in the trial were whether the Crown had proven that the accused was the person in possession of certain drugs found in the apartment and that a quantity of cash found in the accused's pockets were the proceeds of trafficking in those drugs.
[3] During the trial, the accused applied for an order directing a mistrial as the result of evidence given by a police officer that the accused had failed to identify himself at the time of his arrest. I dismissed the application for reasons to follow. These are my reasons.
BACKGROUND
[4] Detective Constable Fox is a member of the Ontario Provincial Police Community Street Crime Unit, stationed in Parry Sound. He was the investigating officer in this case. On November 19, 2020, he and five other members of the Street Crime Unit from other Northeastern Ontario OPP detachments entered the basement apartment which was the subject of the search. Inside the apartment, the officers located four individuals, including the accused, all of whom were arrested.
[5] During his examination-in-chief on February 21, 2024, Detective Constable Fox testified that, as the investigating officer, it was his responsibility to identify the arrestees and to provide them with their rights to counsel and cautions about giving statements. The Crown asked him if he was able to identify the accused. He testified that he was unable to do so because the accused refused to identify himself. Detective Constable Fox said that he was therefore required to match the accused to the photo on his driver’s licence to identify him as Mr. Malabre.
[6] During a recess which took place while Detective Constable Fox was being cross-examined, the court received a question from Juror #3. The question read:
Why was the defendant the only person not to give his name/ID to the arresting officers?
[7] When court resumed, I advised the lawyers of the question and discussed the appropriate response with them. When the jury returned to the courtroom, I provided them with this caution:
Ladies and gentlemen, we’re going to resume in just a moment with the cross-examination of Detective Constable Fox, but we’ve received a question from one of you that, that reads, “Why was the defendant the only person not to give his name/ID to the arresting officers?”
I’m pleased we got the question for several reasons. For one, it shows me you're engaged in the process and that’s really important. It also gives me a chance to explain why it’s – to explain something I was going to say at the end of the trial and explain why I think it’s best to let the evidence unfold as the lawyers would, would like it to.
First of all, we all have a constitutional right to remain silent from the moment we are asked questions while detained by the police until the very end of our trial, and because that right is so important, we can take nothing from the fact that we were – that someone who’s accused of an offence refuses to identify himself or herself. The right would mean nothing if we could infer some form of guilt from someone exercising their right to silence. That’s something you would have heard me say at the end of the trial, and I’m glad that we’ve raised it now so that I can put it front and centre.
In any event, having spoken to counsel, I anticipate that there will be more evidence coming out about this particular aspect of the case that may explain or satisfy your curiosity...
Okay. So that we will mark [the question], as I said, Exhibit C.
[8] The trial then continued, with counsel for the accused immediately addressing the issue of his client's right to counsel and to silence in the following cross-examination:
Q. Detective Constable Fox, I understand that you were the arresting officer of the gentleman that's currently before the court, Mr. Malabre?
A. Yes.
Q. Yes, and you would agree with me that at the preliminary hearing you gave evidence that at approximately one-forty-seven, you read Mr. Malabre his right to counsel and his caution, does that sound accurate?
A. Yes, it does.
Q. He was placed under arrest for the same offences or for the offences before the court, correct?
A. Yes, he was.
Q. And he indicated to you that he’d like to speak to a lawyer, Jeffrey Fisher, who works from Ted Royle’s office in Toronto, correct?
A. Right. He – the only thing he would say to me is his lawyer’s Jeff Fisher who works for Ted Royle’s office.
Q. Okay. So it was clear to you at that point in time that Mr. Malabre wished to speak to counsel before addressing any questions that law enforcement might have about his identification?
A. Yes, and I, I was fine with that. My issue was that I have to, in case someone is – has outstanding charges or there’s more jeopardy, I need to know who they are so I can tell that lawyer what the jeopardy of that person…
[9] At 8:50 p.m. the next day, February 22, counsel for the accused advised the court via email that he would be bringing a mistrial application the following day. No formal notice accompanied his message, although counsel did attach highlighted copies of eight cases. When court convened on February 23, after hearing the submissions of counsel, I ordered that counsel for the accused deliver a proper notice and held that the trial would continue until the application was decided.
[10] The accused’s notice of application was filed after hours on February 24. The Crown’s response was received the following morning. The mistrial application was argued during breaks in the evidence over the following few days. On the morning of February 28, I advised the parties that the mistrial application was dismissed for reasons to follow, and the trial continued.
[11] The accused testified in his own defence. He denied that the drugs found in a fanny pack in the living room area of the apartment were his. He testified that the nearly $5,000 in cash he had in his shorts pockets was cash he had from working two jobs and that he had intended to use the cash to buy his common-law spouse a used vehicle. During his evidence-in-chief, he admitted that he had a criminal record that pre-dated his arrest on November 19, 2020.
[12] On March 1, the accused was convicted by the jury on all counts.
POSITIONS OF THE PARTIES
[13] On behalf of the accused, Mr. Evangelista submits that the impugned evidence was inadmissible for three reasons.
[14] First, and as both the juror’s question and my mid-trial instruction made clear, the evidence had the potential to turn the accused’s right to silence into evidence of guilt. The law is dead set against this: R. v. Chambers, [1990] S.C.R. 1293, at p. 1316; R. v. Turcotte, 2005 SCC 50, [2005] 2 S.C.R. 519, at paras. 41-42; R. v. Guillemette (2022), 2022 ONCA 436, 162 O.R. (3d) 481, at paras. 36-37.
[15] Second, even if the evidence of the accused’s refusal to answer was somehow admissible, the Crown was obliged to enter into a voir dire because the accused’s response was a statement to a person in authority: see Erven v. R., [1979] 1 S.C.R. 926.
[16] Finally, counsel submits that the evidence could be characterized as post-offence conduct. As such, counsel submits that the evidence should only have been admitted after determining whether it had sufficient probative value: see R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433.
[17] The accused submits that the impugned evidence is highly prejudicial to his client in the context of a case in which the question was whether the drugs found in the apartment were those of Mr. Malabre or, instead, belonged to one of the other individuals found in the apartment, all of whom identified themselves. He submits that a mistrial must be declared because “[a]ll of the instructions in the world will not cure the prejudice; it will only serve to make the [a]pplicant’s plight worse” and because no mid-trial corrective instruction “could stem the river of bile flowing from the improper evidence.”
[18] On behalf of the Crown, Ms. Bellows points out that there was no objection to the evidence of Detective Constable Fox at the time it was given, that defence counsel was content with the mid-trial instruction at the time that it was delivered, and that the mistrial application was made only after several more police officers gave evidence on behalf of the Crown.
[19] She submits that the mid-trial instruction had the effect of “entirely and effectively” quashing any opportunity that the impugned evidence would be misused.
ANALYSIS
[20] As the accused concedes, a mistrial is a remedy of last resort. It should be declared only when no other remedy, including a corrective instruction, will suffice: R. v. Zvolensky, 2017 ONCA 273, 135 O.R. (3d) 401, at para. 186. In my view, the corrective instruction I gave the jury was capable of preventing any use, let alone any misuse, of the evidence that Mr. Malabre refused to identify himself.
[21] In my opinion, the fact that the impugned evidence may have breached two rules of evidence in addition to turning the exercise of a constitutional right into possible evidence of guilt adds nothing to the analysis. I instructed the jury to ignore completely the evidence in question. This is as corrective an instruction as can be given. It mattered not that the evidence should have been the subject of a voir dire or that its probative value had not yet been determined. The evidence was removed entirely from the jury's consideration.
[22] Nor does it matter much, in my view, whether the Crown should have asked the question that elicited the impugned evidence. For what it is worth, as the Crown points out, the accused refused to concede the issue of identity at trial. While it would have been preferrable for the Crown to have instructed the witness prior to testifying to stay away from the accused's refusal and to focus simply on how he identified the accused, it cannot be said that the question called for evidence that was clearly irrelevant. [1] In any event, the propriety of the question is only one of the factors to be considered on a mistrial application: R. v. Collins, 2023 ONCA 394, at para. 80.
[23] What matters much more is that the question demonstrated the potential for misuse of the evidence very shortly after the evidence was given, and that the corrective instruction followed the question almost immediately. This had the effect, in my view, of eliminating the possibility that the evidence could continue to have a prejudicial effect throughout the balance of the trial. As the trial judge, I had the advantage of looking at the jurors as I delivered my corrective instruction and I saw several of them nodding affirmatively as I made my remarks. I believe that they understood the importance of the right to silence and the harm that would result from using it as evidence of guilt.
[24] Also relevant, in my view, is that Mr. Evangelista took advantage of the fact that he was cross-examining Detective Constable Fox at the time the question was posed to inoculate the jury against using his client's silence as evidence of guilt by highlighting that the accused wanted to speak to his lawyer before answering any questions from the police. This had the effect of tying the right to silence, a right some members of the jury might not have fully appreciated in the context of the issues in this particular case, to the right to speak to a lawyer upon arrest, a right that most jurors can understand in the context of any case.
[25] Further, there was no prejudice to the accused resulting from the evidence that the accused already knew a criminal lawyer at the time of his arrest because he admitted during his evidence-in-chief that he had a criminal record that pre-dated his arrest on these offences and no application was ever brought to exclude the record under R. v. Corbett, [1988] 1 S.C.R. 670.
CONCLUSION
[26] For all of these reasons, the application for a mistrial was dismissed.
M.G. Ellies J.
Released: March 15, 2024
CITATION : R. v. Malabre , 2024 ONSC 1515
COURT FILE NO.: CR-24-002 DATE: 2024/03/15
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING Applicant – and – MICHAEL MALABRE Respondent
REASONS FOR DECISON on mistrial application
M.G. Ellies J.
Released : March 15, 2024
CORRECTED DECISION : The text of the original decision was corrected on May 31, 2024, and the description of the correction is appended below:
- The court file number was corrected on pages 1 and 7.
[1] In fairness to Ms. Bellows, I suspect that, with the benefit of hindsight, both counsel and I would have done things differently: she would have instructed the witness to avoid giving the evidence, Mr. Evangelista would have objected if the evidence came out despite her instructions, and I would not have waited until either a question was posed or an objection made to deliver a mid-trial instruction. Fortunately, however, the juror’s question was posed soon after the evidence was given and the potential consequences of our shortcomings were avoided, as I explain.