Court File and Parties

Court File No.: CR-23-43100017 Date: October 29, 2025 Ontario Superior Court of Justice

Between: His Majesty the King – and – Janai Jean, Accused

Counsel: G. Jarrar, Crown Attorney C. Rosemond, Counsel for Mr. Jean

Heard: October 10, 2025

Reasons for Decision on Mistrial Application

The Honourable Justice Sunil S. Mathai

Introduction

[1] Mr. Jean was charged with assault with a weapon and unlawful confinement. I was assigned as the trial judge sitting with a jury. The trial began on October 6, 2025. On October 15, 2025, the jury returned a verdict finding Mr. Jean guilty of assault with a weapon and not guilty of unlawful confinement.

[2] Both charges relate to an incident that occurred in October 2022. The Crown alleged that there were two video recordings made of the assault and unlawful confinement. The two videos were entered at trial as Exhibits 1 and 3. The Crown alleged that the two videos depict a man, Faysal Wiso, duct taping and assaulting another male. [1] The Crown further alleged that Mr. Jean was the person recording the videos and abetted the assault with a weapon and unlawful confinement.

[3] The Crown called Mr. Wiso as a witness. During his examination-in-chief, Mr. Wiso expressed concerns about answering Mr. Jarrar's questions about who recorded Exhibits 1 and 3. Mr. Wiso testified that he was scared for his own safety and his family's safety. As a result of these comments, Mr. Jean sought a mistrial. I heard argument on the mistrial application on October 10, 2025. On October 13, 2025, I dismissed the application with reasons to follow. These are my reasons.

Background

(a) The Recordings

[4] In my final charge to the jury, I described Exhibits 1 and 3 as follows:

Exhibit 1:

Exhibit 1 is the "Whipping Video". It is 27 seconds long and was created on October 21, 2022. The video shows an individual laying on the ground. This individual has his pants down and his underwear exposed. The person laying on the ground is shown with his hands duct taped and an individual wearing a hat is duct taping the person's mouth. Another person is recording. The video also depicts the duct taped man being whipped. The face of the person making the recording is not seen in the video nor is the face of the person whipping the duct taped person. The hands of the person recording the video appear to be visible.

Exhibit 3:

Exhibit 3 is the "Rat Video". This video is 8 seconds long and there is no evidence before you on the video's creation date. It shows a man laying on the ground as his hands are being duct taped. The person laying on the ground is then seen being slapped, kicked and stomped on by a person. The person recording the video appears to kick the person laying on the ground. Again, the face of the person making the recording is not seen in the video nor is the face of the person whipping and kicking the duct taped person. The hands of the person recording the video are not seen in Exhibit 3.

Audio Content of Exhibit 1:

• The person recording the video appears to say something to the effect of "oopie, you're done on here" and laughs. While this is happening, the other male depicted in the video is duct taping the mouth of the person laying on the ground;

• The person recording the video appears to drop ashes on the duct taped male while saying, "Ash on this fucking [unintelligible]"; and

• The person recording the video appears to say something to the effect of "fucking ratted on mans, I told you, whoever rats on mans again, they are getting done with rough…". While this is said, another male is whipping the duct taped man.

Audio Content of Exhibit 3:

• The person recording the video appears to say something to the effect of, "that's for fucking calling the police, you don't call the police, you don't do that shit". While these comments are made, another male is slapping and stomping the man on the ground; and

• The person recording Exhibit 3 appears to kick the male laying down in the video.

(b) Mr. Wiso's Guilty Plea

[5] On October 22, 2024, Mr. Wiso pled guilty to unlawful confinement with respect to the acts depicted in Exhibits 1 and 3. During Mr. Wiso's guilty plea, he was affirmed and agreed that he assaulted and unlawfully confined the duct taped man seen in Exhibits 1 and 3. Importantly, Mr. Wiso also agreed that Mr. Jean was the videographer of Exhibits 1 and 3. Mr. Wiso's counsel then confirmed that the allegations read by the Crown were "substantially correct".

[6] The Crown called Mr. Wiso as a witness to, amongst other things, provide evidence that Mr. Jean was the person who recorded Exhibits 1 and 3. Despite the Crown's best intentions, Mr. Wiso did not give this evidence. Mr. Wiso was a reluctant witness.

(c) Binding Over Mr. Wiso

[7] On two occasions I had to bind over Mr. Wiso as a witness. On both occasions, Mr. Wiso made comments, in the absence of the jury, that demonstrated that he was scared to testify. For example, on October 6, 2025, Mr. Wiso stated:

FAYSAL WISO: I respect your opinion but please, I had a meet, I had a chance to talk to him but he doesn't seem to understand nothing, so, I came to talk to you cause you're the smartest guy in the room and, Your Honour, I have concerns like. I'm not scared of the accused, it's, it's the, like, it's the reputation. That you guys want me to do, it's, I can't, it's, it's too dangerous to do. I've talked to [Crown Counsel], he doesn't seem to care. Your Honour, like, he's treating me like I'm a casino gambling with my life, I can't do this. It's, it's too hard for me, too hard for my mom. Like, I'm a guy tryin' to do good, like I'm working toward an apprenticeship in construction. Like how bad do you guys want me to succeed in life like, you guys are just draggin' me back into jail. I can't do this, Your Honour. Like I came here to fulfil my subpoena cause I don't want to go to jail. I keep tellin' him, what you're subpoenaing me on like, Your Honour, like there's a victim. I'm not a victim, I was an accused, I did my time, three years and a half. How much time you guys want from me? Your Honour, please, I hope you understand, it's, it's, if I testify, I would literally have to move out of, out of the whole, I would have to move away. I, it's not because of his client, it's not because of, it's anything, I, I, can't do this, like. You guys are forcing me; I have a family too.

[8] Mr. Wiso also made similar comments on October 7, 2025:

FAYSAL WISO: Again, like I'm not trying to be disrespectful to nobody here but the Crown is representing the public, I'm not in custody, I am part of the public, if something again happens, not because of this man, something just happens because of just me comin' into court, other people see this, then the publics at risk, that means I'm at risk cause I am part of the public. So, how does that play out? That's what I'm tryin' to say to you guys, you guys having me [Indiscernible] in this situation. I tried to explain yesterday, it seems like no one really cares, no one understands how tough this is. I, I've did my time, I've worked on my life enough to get to this point and you guys are keep draggin', again. The crime that you're saying, I did it all, I'm even wearing the same shoes that I, they have in the video. I did my consequences for it, he had nothing to do with it, it's all on me. I beat the guy up; I did it all. So, I don't know why [Crown Counsel] keeps draggin' me into this, I've already did my time, it's hard for me.

(d) Mr. Wiso's Evidence

[9] Mr. Wiso's evidence began on October 8, 2025. In examination-in-chief, Mr. Wiso testified that he did not recall who recorded Exhibits 1 and 3 because he was drunk and high at the time of the recordings. Attempts to refresh his memory with his guilty plea were unsuccessful. As a result, the Crown brought an application under s. 9(2) of the Canada Evidence Act, R.S.C., 1985, c. C-5, seeking to cross-examine Mr. Wiso on a prior inconsistent statement (i.e., his admission during the guilty plea that Mr. Jean was the videographer).

[10] I heard argument on the s. 9(2) application on October 8, 2025. After hearing further argument on October 9, 2025, I ruled that Mr. Wiso's memory issues were not genuine and, as a result, his testimony was inconsistent with his guilty plea admission. Mr. Wiso then gave evidence in a voir dire on the circumstances surrounding his guilty plea. Following the voir dire, I heard further submissions from counsel before granting the s. 9(2) application.

[11] Prior to cross-examining Mr. Wiso on his prior inconsistent statement, Mr. Jarrar again asked Mr. Wiso, in the presence of the jury, whether he recalled who recorded Exhibit 3. Mr. Wiso did not answer the question directly and stated that Exhibit 3 did not show the recorder's face. In follow-up questions, Mr. Wiso answered that the recorder appeared to be Mr. Jean. It was clear to me that Mr. Wiso misunderstood the follow-up questions, and that Mr. Wiso was identifying Mr. Jean as the person who recorded Exhibit 5. Exhibit 5 is a video depicting Mr. Jean and Mr. Wiso together. That video, which was subject to a mid-trial ruling on its admissibility, was created on December 17, 2022, nearly two months after the events at issue.

[12] Given Mr. Wiso's confusion, I attempted to clarify the question for him. In answering my question, Mr. Wiso testified as follows:

THE COURT: Okay, which for the record is Exhibit 3. Do you remember who recorded Exhibit 3? So, this video, the video that's right there on the screen, that's Exhibit 3, do you remember who recorded that? Madam Interpreter, can you interpret that question.

ARABIC INTERPRETER: [Arabic language]

THE WITNESS: [Arabic language]

ARABIC INTERPRETER: I don't want to say anything.

THE WITNESS: [Arabic language]

ARABIC INTERPRETER: I don't want to say anything that would make me lose my life.

[13] In a follow-up question by Mr. Jarrar, Mr. Wiso testified that he wanted to say a prayer. I excused the jury and gave Mr. Wiso an opportunity to leave the courtroom to say a prayer. After the break, Mr. Wiso continued to express concerns for his safety and his family's safety:

[CROWN COUNSEL]: Q. Mr. Wiso, based on your memory, you've already told us that you were there, who was it that recorded the video that day?

A. Mr. Crown, I, I have to.

THE COURT: Madam Registrar, can you move the microphone so it's closer to him, please.

THE WITNESS: A. As from where I said to you, I told you that I also have a family too just like you do.

Q. Okay, Mr. Wiso, again you told us you were there, from your memory, who recorded the video?

THE COURT: Sorry.

[CROWN COUNSEL]: I didn't notice my friend rising.

[DEFENCE COUNSEL]: You know what, actually I withdraw the objection for now, I'll let it continue. Sorry.

THE WITNESS: A. From, from what I see, I can't really make up who but, from what I see from the, the other video it looks like him.

THE COURT: When you say, "other video". Can you bring up five?

[CROWN COUNSEL]: Sure, yes.

THE WITNESS: Your Honour, the people has to know that I have a family too, it's not like I'm going to do this and go home. Like, there's a risk attached to this too.

Q. So, Mr. Wiso, I'm not interested in this, my question wasn't about this video it was about Exhibit Number 3, the Rat Video, the one that I had up before.

THE COURT: Can you bring that back up?

[CROWN COUNSEL]: Yes, thank, Your Honour.

THE WITNESS: Your Honour, I don't want to play around the bush like, it's not, there's a risk to it like. I, I, truly I fully don't remember but like you guys have to know that I was involved with some serious stuff, and like, I did better my life but like, it's not something that just, it's a slap on the wrist here.

[CROWN COUNSEL]: Mr. Wiso, I heard you say you don't remember and that could be your position, do you remember who recorded that video? The answer can be no, do you recall who recorded that video?

A. It's me beating the guy up.

Q. Right, but do you remember who recorded the video?

A. If I say anything I feel like I'm in trouble here like. Your Honour, how, how can it be sure that, that like nothings going to happen, it's, that's what I'm like. I'd like to go home safe on the end of the day too, like.

[14] After this last comment, I excused the jury and asked Mr. Wiso to leave the courtroom. The jury retired at 2:48 p.m. After Mr. Wiso's departure, I advised counsel that I was concerned about Mr. Wiso's evidence. Specifically, I was concerned that the jury would speculate that Mr. Jean was the source of Mr. Wiso's safety concerns. Mr. Rosemond agreed. Mr. Rosemond argued that the only way to remedy the prejudice was to declare a mistrial. To address Mr. Rosemond's concerns, I suggested that Mr. Jean could re-elect to be tried by judge alone. Counsel appeared amenable to this approach and, as a result, I gave them time to consider this option.

[15] Ultimately, the parties did not agree to re-elect. After hearing additional submissions from counsel, I recalled the jury at 4:32 p.m. and provided the following mid-trial instruction:

Mr. Wiso testified that he was unwilling to answer who recorded Exhibits 1 and 3. He explained that his reluctance related to fears for his and his family's safety. I am instructing you that you must disregard this evidence. You are not to consider his evidence about the fears for his safety for any purpose.

There is absolutely no evidence that Mr. Wiso has been threatened by Mr. Jean or anybody he is related to. You cannot use Mr. Wiso's evidence about his fears for his safety to: (a) infer that Mr. Jean or anybody related to him is the cause of his fear; (b) to find that Mr. Jean is a bad or dangerous person and (c) to find that Mr. Jean is the type of person that would commit the crimes he is charged with. Using Mr. Wiso's evidence on his fear for his safety in this manner is entirely inappropriate and the law does not permit it to be used in this manner because it could cause a miscarriage of justice.

[16] After providing the mid-trial instruction, Mr. Jarrar asked no further questions. [2] Mr. Rosemond then cross-examined Mr. Wiso. Mr. Wiso's evidence ended the following morning on October 10, 2025.

[17] The Crown called one last witness on October 10, 2025, and then closed its case. After the close of the Crown's case, I heard argument on the mistrial application.

Governing Legal Principles

[18] It is well established that a mistrial is a remedy of last resort that should only be declared in the clearest of cases when no remedy short of that relief will adequately redress the actual harm occasioned (see R. v. Toutissani, 2007 ONCA 773, at para. 9; R. v. Jeanvenne, 2010 ONCA 706, 270 O.A.C. 22, at para. 58; R. v. Arabia, 2008 ONCA 565, 240 O.A.C. 104, at para. 52).

[19] In determining whether to grant a mistrial application, the court must consider whether other less drastic steps could remediate the issues that threaten the trial's fairness. The decision of whether to declare a mistrial falls within the discretion of the trial judge, who must assess whether there is a real danger that trial fairness has been compromised (R. v. Donnelly, 2023 ONCA 243, at para. 16; R. v. Barra, 2021 ONCA 568, 157 O.R. (3d) 196, at para. 147; R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 79). The Court of Appeal for Ontario has found that mid-trial and final limiting instructions have been sufficient to remedy a jury's hearing of prejudicial evidence (see R. v. I.M., 2023 ONCA 378, 426 C.C.C. (3d) 468, at para. 17; R. v. Mofit, 2015 ONCA 412, 338 O.A.C. 144, at para. 94; R. v. Mariani, 2007 ONCA 329, 223 O.A.C. 308, at para. 46).

Application of Governing Legal Principles

[20] Before addressing the issue of remedy, I must define the prejudice at issue.

[21] In this case, Mr. Jean alleges two connected forms of prejudice that would impair his fair trial rights: (1) the jury speculating that Mr. Jean is the cause of Mr. Wiso's safety concerns and that Mr. Jean, or someone connected to him, threatened Mr. Wiso or his family; and (2) the jury speculating that, absent Mr. Wiso's concerns for his safety, Mr. Wiso would have testified that Mr. Jean was the person who recorded Exhibits 1 and 3.

[22] With respect to the first form of prejudice, the Crown argues that the mid-trial instruction that I provided to the jury on October 9, 2025, was sufficient to address any prejudice. The Crown also argues that given the generalized fear expressed by Mr. Wiso, the jury would not have formed the impression that Mr. Jean, or any person connected to Mr. Jean, threatened Mr. Wiso. Instead, the Crown argues that Mr. Wiso's testimony demonstrated a general fear of the "rat culture". Mr. Rosemond argues that the jury could not have generalized Mr. Wiso's evidence in the absence of expert evidence on the "rat culture". [3]

[23] Respectfully, I disagree with parts of both of Mr. Jarrar and Mr. Rosemond's submissions.

[24] First, it is not clear to me that expert evidence is required for the jury to conclude that Mr. Wiso's safety concerns related to the "rat culture" (see R. v. Fitzpatrick, 2022 ONSC 1882; R. v. Boswell, 2011 ONCA 283, 280 O.A.C. 283). That said, in the absence of a limiting instruction, I find it likely that the jury would have interpreted Mr. Wiso's evidence as expressing a fear about Mr. Jean. This conclusion is based on the context in which the impugned evidence arose.

[25] Mr. Wiso's impugned evidence arose during his examination-in-chief. He testified that Mr. Jean was the person in Exhibit 5 (which was obvious), but was then reluctant to identify the person who recorded Exhibits 1 and 3. The jury would have known that the Crown was seeking evidence from Mr. Wiso that Mr. Jean was the person recording Exhibits 1 and 3. Additionally, Exhibits 1 and 3 both make it clear that the victim was being assaulted and unlawfully confined because the perpetrators of the crime believed that the victim was a "rat". If the jury was to find that Mr. Jean was the person who recorded Exhibits 1 and 3, then it was certainly possible that the jury might speculate that Mr. Wiso feared testifying against Mr. Jean because he was threatened by Mr. Jean, or someone connected to him.

[26] Based on the above, I agree with Mr. Rosemond that there was a significant risk that the jury could view Mr. Wiso's evidence as uncharged discreditable conduct – that Mr. Jean is the type of person who would threaten a witness and/or a witness's family. As a result, in the absence of a limiting instruction, there is a real risk that the jury might convict Mr. Jean because he could be perceived as the kind of person likely to commit the offence charged (see R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 100).

[27] On the other hand, I do not view the impugned evidence as creating a significant risk of reasoning prejudice as the evidence, while repeated, was very short.

[28] With respect to the second form of prejudice, I find that there is a real risk that the jury would speculate that Mr. Wiso would have identified Mr. Jean as the videographer of Exhibits 1 and 3 if he did not fear for his safety or the safety of his family.

[29] Having defined the two forms of prejudice at issue, I must evaluate whether any remedy, short of declaring a mistrial, would resolve the prejudice. In the circumstances of this case, I agree with Mr. Jarrar that the mid-trial instruction and final jury charge completely addressed both forms of prejudice. I come to this conclusion for several reasons.

[30] First, as noted above, the mid-trial instruction required the jury to disregard the impugned evidence. The jury was also instructed against using the impugned evidence to engage in any form of moral prejudice. I also instructed the jury that there was no evidence that Mr. Jean, or any person connected with Mr. Jean, threatened Mr. Wiso. The instruction was clear and direct. Jurors are expected to perform their duties in accordance with the law and the instructions they are given (see R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948, at para. 116; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 177; R. v. Corbett, [1988] 1 S.C.R. 670, at pp. 692–93).

[31] Second, I also find that the timing of the mid-trial instruction assisted in remedying the prejudice. The instruction was provided about 2 hours after the impugned evidence was heard by the jury and before any additional evidence was heard. As such, the instruction would have resonated with the jury and the impugned evidence would have been fresh in the jury's mind when they were provided with the mid-trial instruction.

[32] Third, to amplify the mid-trial instruction, I included the following in the final charge:

86. In relation to this evidence, I am again instructing you, in no uncertain terms, that you must disregard this evidence. As I indicated in the mid-trial instruction, there is absolutely no evidence that Mr. Wiso has been threatened by Mr. Jean or anybody related to Mr. Jean. You cannot use Mr. Wiso's evidence about his fears to:

(a) conclude that Mr. Jean or anybody related or connected to him is the cause of Mr. Wiso's fear;

(b) to find that Mr. Jean is a bad or dangerous person;

(c) that Mr. Jean is the type of person who would seek retribution against a witness;

(d) to find that Mr. Jean is the type of person that would commit the crimes he is charged with; and

(e) if you were to reject Mr. Wiso's evidence that he does not remember who recorded Exhibits 1 and 3, then you cannot use that as evidence that Mr. Jean is the videographer nor can you speculate on what his answer would have been had he answered the question.

Using Mr. Wiso's evidence about his fear for his safety in the ways I have identified is inappropriate and the law does not permit Mr. Wiso's evidence to be used in this manner because it could cause a serious miscarriage of justice.

87. Once again, do not lose sight of your task at this trial. You are not trying Mr. Jean for anything other than the offences with which he is charged in the indictment. You are here to decide whether Crown counsel has proven beyond a reasonable doubt the offences charged in the indictment.

[33] The final charge instructed the jury that if they rejected Mr. Wiso's evidence that he could not remember who recorded Exhibits 1 and 3, then the jury could not use Mr. Wiso's evidence to establish that Mr. Jean is the videographer. The jury was further instructed that they could not speculate on who Mr. Wiso would have named had he answered the question when asked again. This instruction fully remedied the second form of prejudice identified above and amplified the mid-trial instruction.

[34] In arguing in favour of a mistrial, Mr. Jean relies heavily on McWilliam D.C.J.'s decision in R. v. Pizzardi (1990), 9 W.C.B. (2d) 280 (Ont. Dist. Ct.). In that case, McWilliam D.C.J. granted a mistrial application where a witness testified that he was scared that the accused was going to kill him and that was why he was put in the Witness Protection Program. In granting the mistrial application, McWilliam D.C.J. stated at p. 41:

In a certain sense the Government of Ontario has given its imprimatur to a witness when he is accepted into the Witness Protection Program or surely the ordinary citizen might reasonably think that the government is not prepared to subsidize lies. So there is a certain screening which the ordinary citizen might believe goes into this.

And on p. 42:

The Crown can make disclosure of its existence in a given case but the rules cannot be made easier for such a witness. Here, in my view, inadmissible character evidence was blurted out. The accused is made to look like the kind of person who perhaps can kill and beat people. Protection has been given from someone whom the jury might conclude was capable of doing that.

[35] Pizzardi does not assist Mr. Jean. To state the obvious, a mistrial application must be decided based on the particular facts before the court. Pizzardi does not purport to create a "bright line" for when a mistrial should be granted. Further, the facts of Pizzardi are distinguishable from the case before me.

[36] First, in Pizzardi, the witness identified the accused as the source of his fear. In this case, Mr. Wiso did not testify that he feared Mr. Jean, or any person connected to him. Mr. Wiso did not testify that he had been threatened. Had Mr. Wiso explicitly identified Mr. Jean as the source of his safety concern, then the prejudice would certainly have been higher. In that circumstance, and in the absence of the Crown bringing an application to have this evidence admitted, [4] a mid-trial instruction may not have been sufficient to address the prejudice of the jury being told that Mr. Jean was the source of Mr. Wiso's safety concern.

[37] Second, in Pizzardi, the trial judge did not provide a mid-trial instruction. In this case, the mid-trial instruction, which was amplified in the final charge, addressed the prejudice arising from the impugned evidence.

[38] Third, the main reason why a mistrial was granted in Pizzardi was because the witness had identified the accused as the source of his fear and those fears were "legitimized" by the Ontario government who had accepted the witness into the Witness Protection Program. [5] In this case, there is no evidence that Mr. Wiso had been threatened by Mr. Jean, nor had the jury heard any evidence that would have "legitimised" Mr. Wiso's safety concerns.

[39] Mr. Rosemond argues that the mid-trial instruction, while strong, did not remedy the prejudice because he observed some of the jurors appearing confused while the instruction was provided. Mr. Rosemond's observations are inconsistent with my own. While providing the mid-trial instruction, I observed three jurors nodding while I was giving the instruction. Mr. Rosemond's observations do not provide a sufficient basis to believe that the jury did not understand the mid-trial instruction.

[40] Mr. Rosemond also argues that the moral prejudice in this case is heightened by the song played in Exhibit 5. The song includes lyrics that appear to say something to the effect of, "niggas be killed for this". Mr. Rosemond argues that a mistrial is the only remedy that would address the heightened risk of moral prejudice caused by the impugned evidence and the lyrics. I disagree.

[41] It is not clear to me that the jury would pay careful attention to the lyrics heard in Exhibit 5. I come to this conclusion because: (1) the lyrics are not clearly heard in the video; (2) neither party referred the jury to the music being played; (3) the Crown was only relying on the video for the fact that both Mr. Wiso and Mr. Jean are seen together; and (4) Mr. Rosemond did not raise the lyrics as being prejudicial during argument on the Crown's motion to admit Exhibit 5. I also note that at the end of the trial, Mr. Rosemond conceded to the jury that Mr. Jean can be seen in Exhibit 5. This concession dulled the impact of the Exhibit 5.

[42] Even if the jury paid attention to the lyrics, Mr. Rosemond's argument ignores the fact that the jury was given a mid-trial instruction with respect to Exhibit 5. The mid-trial instruction was expanded upon in the final charge. Both sets of instructions informed the jury that they could only use the video to find that Mr. Jean and Mr. Wiso were not strangers and that they possibly knew each other. The jury was also instructed that they could not use Exhibit 5 for any prohibited reasoning.

[43] Finally, Mr. Rosemond argues that a mistrial is the only appropriate remedy because: (1) Mr. Wiso repeatedly testified that Mr. Rosemond's cross-examination was "killing him"; and (2) Mr. Wiso called into question Mr. Jean's right not to testify by repeatedly stating, in the presence of the jury, that Mr. Jean should testify. Both submissions do not accurately characterize Mr. Wiso's evidence.

[44] In response to Mr. Rosemond's questions, Mr. Wiso did say that Mr. Rosemond was "killing him". In context, however, it was clear to me and would have been clear to the jury that Mr. Wiso was testifying that Mr. Rosemond's questions were testing his patience. Contrary to Mr. Rosemond's submission, Mr. Wiso was not suggesting that the cross-examination was going to get him killed.

[45] Mr. Wiso did not state that Mr. Jean should testify. In cross-examination, Mr. Rosemond asked Mr. Wiso to agree that the recorder's voice in Exhibits 1 and 3 was not Mr. Jean. In building up to these questions, Mr. Rosemond did not ask Mr. Wiso whether he even knew Mr. Jean well enough to be able to determine whether Mr. Jean's voice was heard in Exhibits 1 and 3. In response to Mr. Rosemond's questions, Mr. Wiso said that he would have to hear Mr. Jean's voice to be able to compare the voice on the video to Mr. Jean's voice. Mr. Wiso then suggested that Mr. Jean speak. Of course, this did not happen.

[46] Mr. Wiso did not call into question Mr. Jean's right not to testify at trial. Mr. Wiso's evidence was responsive to Mr. Rosemond's questions and the evidence supported the defence's theory that Mr. Jean may not have known Mr. Wiso at the time of the assault and unlawful confinement. In fact, Mr. Wiso's evidence supported Mr. Rosemond's argument that Exhibit 5 should not be used by the jury to infer that Mr. Jean and Mr. Wiso knew each other at the time that Exhibits 1 and 3 were created.

[47] If I am wrong on this point, then my initial instruction to the jury and my final charge remedied any prejudice caused by Mr. Wiso's evidence on the recorder's voice. Both instructed the jury that Mr. Jean did not have to testify, that they could not infer anything from Mr. Jean exercising his right not to testify and that Mr. Jean did not have to prove anything.

[48] For the above reasons, I dismissed Mr. Jean's mistrial application. I am confident that the mid-trial instruction, which was amplified by the final charge, adequately addressed the prejudice caused by Mr. Wiso's impugned evidence.

The Honourable Justice S. Mathai

Released: October 29, 2025

Footnotes

[1] The victim of the assault and unlawful confinement was Derek Bolton. He was not a witness at trial.

[2] Mr. Jarrar decided not to cross-examine Mr. Wiso on his prior inconsistent statement.

[3] Neither party suggested that a voir dire be conducted to determine whether Mr. Wiso had a general fear of being labelled a "rat", as suggested in his exchanges with me on October 6 and October 7, or whether Mr. Wiso had specific fears in relation to Mr. Jean. I understand why such an approach was not taken as Mr. Wiso was, to put it mildly, an unpredictable witness. That said, with the benefit of hindsight, it would have been preferable to conduct a voir dire to determine the nature and source of Mr. Wiso's fear. Conducting a voir dire may have dispelled any concern that Mr. Wiso was scared of Mr. Jean.

[4] For example, if there was evidence that Mr. Jean had threatened Mr. Wiso or his family, then this evidence might have been admissible as post-offence conduct.

[5] In Pizzardi, there were media reports that SWAT team members had been in the court. If SWAT team members were in the court, then this would have heightened the witness's safety concerns and his fear of the accused.