Court File and Parties

Court File No.: CR-122-24 (London)
Date: 2025-05-20
Ontario Superior Court of Justice (Southwest Region)

Between:
His Majesty the King
– and –
Michael McLeod, Carter John Hart, Alexander Formenton, Dillon Dube & Callan Hayden Foote, Accused

Appearances:

• Meaghan Cunningham and Heather Donkers, for the Crown
• David Humphrey and Anna Zhang, Counsel for Michael McLeod
• Megan Savard and Riaz Sayani, Counsel for Carter Hart
• Daniel Brown and Hilary Dudding, Counsel for Alex Formenton
• Lisa Carnelos and Julie Santarossa, Counsel for Dillon Dube
• Julianna Greenspan and Lauren Crawford, Counsel for Callan Foote

Heard: May 15, 2025

Restriction on Publication

By court order made under subsection 486.4(1) of the Criminal Code, RSC 1985, c C-46, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

Ruling on Motion for a Mistrial #2

Maria V. Carroccia

Introduction

[1] The trial of this Indictment upon which the accused are charged with Sexual Assault and, as it relates to Mr. McLeod, an additional charge of Being a Party to a Sexual Assault, began with the selection of a jury on April 25, 2025. On April 28, 2025, the jury began hearing evidence.

[2] On May 15, 2025, after almost three weeks of hearing evidence, following the morning recess, the jury sent me a note which reads as follows:

Multiple jury members feel we are being judged and made fun of by Lawyers Brown & Hilary Dudding? Everyday when we enter the court room they observe us, whisper to each other and turn to each other and laugh as if they are discussing our appearance. This is unprofessional and unacceptable. # [redacted]

[3] After receiving the note, in the absence of the jury, I shared it with counsel and asked for their submissions on what should be done as a result. Counsel for the defence wished to consider their position and obtain instructions. Counsel for the Crown wished to consider whether they would consent to a re-election by the accused to judge alone and continue with the trial. The Crown determined that it would not consent to a re-election and, as a result, the defence jointly make a motion for a mistrial.

[4] This is the second motion for a mistrial in this matter. I declared a mistrial on April 25, 2025, after a juror on the first jury selected to hear this matter reported that there had been a communication over the lunch hour with a lawyer.

The Positions of the Parties

[5] The Crown takes the position that this motion is premature and submits that the court should first conduct an inquiry of the jury and, if necessary, discharge those members of the jury who are unable to decide this case without prejudice or partiality. The Crown submits that an inquiry together with an instruction to the jury is sufficient to address any concerns raised.

[6] In this matter, there was a challenge for cause during which the jurors were each asked direct questions about their ability to set aside any preconceived notions and decide this case based solely on the evidence and the instructions of the trial judge. The Crown submits that it is troubling that the defence presumes that the jurors would not answer questions asked during an inquiry honestly. We should assume that if any member of the jury is no longer impartial that they will admit it.

[7] The Crown submits that the issue raised by the jury note relates to an impression formed by members of the jury, but that can be remedied. They can be instructed that their impressions are incorrect and that they should be disregarded, and it should not form any part of the decision that they have to render at the end of the trial.

[8] The Crown submits that a jury inquiry followed by instructions is the appropriate mechanism to deal with this issue and that the declaration of a mistrial is a remedy of last resort.

[9] The defence submit that the nature of the issue raised by the jury creates a real danger of prejudice to the accused; not just for Mr. Formenton who is represented by Mr. Brown and Ms. Dudding, but to all of the accused.

[10] The defence refer to the language used in the note that “multiple jury members” feel that counsel are behaving in an unprofessional and unacceptable manner. That they (the jury) are being judged “everyday…as if they are discussing our appearance”. It is their position that this has caused irreparable prejudice to Mr. Formenton’s defence and because, up until this point the defence has been conducted in an obviously cooperative manner, a criticism of Mr. Formenton’s defence team is effectively a criticism of all defence counsel.

[11] Ms. Savard who made submissions on behalf of all counsel submits that an instruction to the jury in these circumstances would be insufficient to address any potential prejudice, because it would effectively be an instruction to the jury to disregard their own feelings. At the heart of the complaint, members of the jury feel that they themselves are being improperly scrutinized by defence counsel. This is not something that can be corrected through an instruction.

[12] The defence submits that no further inquiry is necessary since the jury has made their concerns clear. Any further inquiry would exacerbate the problem and not solve it.

[13] Mr. Brown and Ms. Dudding deny that they engaged in the conduct complained of by the jury. Their real concern is that the complaint alone will have a chilling effect on the manner in which the defence conducts itself moving forward should the mistrial motion be denied. They may be second-guessing whether something they might say or do would be unintentionally offensive to the jury. This would obviously have a significant impact on the defence. Mr. Humphrey echoes that sentiment.

The Legal Principles

[14] Section 11(d) of the Charter states that:

Any person charged with an offence has the right
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

[15] In R. v. Osborne, 2017 ONCA 129, para 81, the Court of Appeal said:

The declaration of a mistrial is a remedy of last resort, reserved for the clearest of cases, where no remedy short of a mistrial will adequately redress the actual harm occasioned. A mistrial should only be ordered where it "is necessary to prevent a miscarriage of justice": R. v. G. (A.), 2015 ONCA 159, para 50; R. v. Chiasson, 2009 ONCA 789, para 14; R. v. Burke, 2002 SCC 55, para 77.

[16] While jurors are presumed to be impartial, that presumption can be rebutted if a reasonable observer would conclude that it is more likely than not that a juror whether consciously or unconsciously would not decide a case fairly: see R. v. Dowholis, 2016 ONCA 801, para 17.

[17] Having said that, the Criminal Code provides a trial judge with the discretion to discharge a juror during a trial in circumstances that constitute “reasonable cause”. Section 644(1) states:

644 (1) Where in the course of a trial the judge is satisfied that a juror should not, by reason of illness or other reasonable cause, continue to act, the judge may discharge the juror.

[18] In R. v. Durant, 2019 ONCA 74, paras 149-150, Watt J.A. sets out the following test for what constitutes “other reasonable cause” sufficient to warrant the discharge of a juror:

It is uncontroversial that lack of impartiality on the part of a selected juror can constitute "other reasonable cause" to discharge that juror under s. 644(1) of the Criminal Code: R. v. Tsoumas, R. v. Andrews. The test applicable at this stage to rebut the presumption of impartiality is that of reasonable apprehension of bias: R. v. Dowholis, 2016 ONCA 801, para 19.

The apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining the required information about it. The grounds for the apprehension must be substantial. The test is what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude: R. v. S. (R.D.), paras 31 and 109.

[19] The defence referred the court to the decision of the British Columbia Court of Appeal in R. v. Masuda. In that case, the trial judge conducted an inquiry of the jury members after learning that some of them had dinner with three police officers who were assigned to guard the jury. Those officers were also witnesses at the trial. Each member of the jury and each of the officers denied, when questioned under oath, that they had any communication about the subject matter of the trial. As a result, the trial judge refused a motion by the defence to declare a mistrial. On appeal, the Court said, at para. 6, that the situation violated two essentials of justice:

The one is that the jury must be kept completely free from any opportunity of communication during the trial, except under the most exceptional circumstances calling for a direction from the Court; and, secondly, that nothing must occur during the trial of a case from which a suspicion may arise that any taint attaches to the proper and meticulous fairness which must always surround the administration of public justice, more especially when a man is on trial for his life.

[20] This passage was cited with approval by the Court of Appeal for Ontario in R. v. Afghanzada, para 14. At para. 15, the Court said:

Both the fact of a fair trial and the appearance of a fair trial are essential to the administration of justice. In my view, the inquiry into the incident which was alleged to have occurred here was not adequate to remove that “taint of suspicion of prejudice to the fair trial of the accused” and thus the taint of prejudice to the public administration of justice.

[21] In Afghanzada, there was an allegation that there had been a conversation between a member or members of the jury and the officer-in-charge during the course of the trial. This had been observed by a defence witness. The appeal was allowed in that case on the basis that the inquiry into the issue was incomplete and inconclusive and therefore the appearance of unfairness remained.

[22] In R. v. Khan, 2001 SCC 86, the jury was provided with transcripts requested by them during their deliberations. Counsel and the trial judge did not realize that the transcripts included submissions made in the absence of the jury. In that case, the Court determined that the trial judge made no error when she denied a motion for a mistrial. In a concurring decision LeBel J. said at para. 79:

When the trial judge realizes that an irregularity has occurred, he or she may consider whether to declare a mistrial, but when possible, he or she may also attempt to remedy the error. The decision of whether or not to declare a mistrial falls within the discretion of the judge, who must assess whether there is a real danger that trial fairness has been compromised (see Emkeit, supra, at pp. 139-40; R. v. Martineau, at p.576; R. c. Lessard, at pp. 559-63; R. c. Taillefer, at p. 54). Although that discretion is not absolute, its exercise must not be routinely second-guessed by the court of appeal.

Analysis

[23] The circumstances with which I am confronted in determining this motion are analogous to the situation in Dowholis, a case referred to by the Crown on the previous motion for a mistrial. In that case, the accused was charged with four counts of aggravated sexual assault related to engaging in sexual activity or attempting to do so with four different men. The accused was an HIV-positive man.

[24] In Dowholis, a juror who was subject to a challenge for cause and indicated that he had no bias against homosexuals went on a radio show during the trial and made derogatory comments about sexual activity between men, the participants in the trial and the trial process. He participated in public discussions that ridiculed the appellant and the complainants: see para. 25.

[25] Benotto J.A. who delivered the majority decision said at para. 41:

… Some types of bias may be easier to set aside than others. Pre-trial publicity about a case may be easier for a juror to ignore than – for example – an ingrained attitude about certain classes of persons.

[26] And at para. 47 she stated:

… The reasonable observer would hold those who represent the justice system to a high standard and expect them to show respect for the system and the persons involved in it. In an era of declining civility in public discourse, it is more important than ever that the courts maintain the dignity and impartiality that grounds public confidence in our justice system.

[27] Although not as serious as the circumstances in Dowholis, in this situation, I am confronted with jurors who have expressed clearly negative feelings about counsel for Mr. Formenton. More importantly, the perception of at least some of the jurors, based on the words of the note now marked as Exhibit J are that counsel are being unprofessional towards the jury. They have expressed that they feel that they are being “judged” by counsel.

[28] The note makes reference to the fact that this is the feeling of “multiple jury members” which suggests that this is a topic that has been discussed and considered by the jury. This is obviously a highly unusual situation where the issue revolves around what the jury perceives as inappropriate conduct by two of the defence lawyers directed towards them.

[29] In R. v. Chacon-Perez, 2022 ONCA 3, para 125, the Court of Appeal re-iterates:

Declaration of a mistrial is a remedy of last resort, reserved for cases in which the irregularity fatally compromised the fairness of the entire trial and that no remedy other than a new trial is available: R. v. Pires, 2004 BCCA 33, paras 53-59, aff’d on other grounds, 2005 SCC 66.

[30] I have considered whether it would be appropriate to conduct a further inquiry of the jury. Where the concern is the general conduct of counsel, it would be difficult to conduct an inquiry that would adequately address the issue raised without asking the jurors to reveal their opinions about that lawyer. To do so might impact trial fairness and exacerbate the situation rather than remedy it.

[31] Again, my concern is that there is a possibility that several members of the jury harbour negative feelings about certain counsel that could potentially impact upon their ability to fairly decide this case. It is reasonable to conclude that in this situation negative feelings about counsel and how they conduct themselves might impact the jury’s perception of the accused. This would obviously compromise the fairness of the trial.

[32] This is not a discrete “irregularity” that could be addressed by corrective instructions. I agree with the defence that it would be difficult to ask the jury to set aside their perceptions when those perceptions are in relation to themselves, although I recognize that jurors are presumed to be impartial and are presumed to follow the directions of trial judges.

[33] I am also concerned with what Mr. Brown described as the “chilling effect” this will have on counsel, including the ability of Mr. Formenton, as well as the other accused, to make full answer and defence to the charges while trying not to offend the members of the jury.

[34] It is with reluctance that I have determined that the fairness of this trial has been compromised. In the circumstances I must discharge the jury to protect trial fairness. Having said that, I will permit counsel to reconsider whether there are any other options, including consenting to a re-election by the accused to permit this matter to continue. If there is not, no remedy short of the declaration of a mistrial would adequately address the impact on the fairness of the trial, and the motion for a mistrial would be granted.

Maria V. Carroccia
Released: May 20, 2025