View source for Mistrials

{{fr|Annulations_du_procès}}
{{Currency2|January|2021}}
{{LevelZero}}{{HeaderTrials}}
==General Principles==
A mistrial is a remedy where it "is necessary to prevent a miscarriage of justice."<ref>
{{CanLIIRP|Burke|51r4|2002 SCC 55 (CanLII)|[2002] 2 SCR 857}}{{perSCC-H|Major J}}{{atL|51r4|75}}<br>
see also {{CanLIIRP|Chiasson|26jbs|2009 ONCA 789 (CanLII)|258 OAC 50}}{{TheCourtONCA}}<br> 
{{CanLIIRP|Toutissani|1tnlx|2007 ONCA 773 (CanLII)|[2007] OJ No 4364}}{{perONCA|MacPherson JA}}<br>
</ref>
A miscarriage can arise where "a trial is unfair, or when the trial has the appearance of unfairness, viewed by a well-informed, reasonable person considering the whole of the circumstances."<ref>
{{CanLIIRP|Khan|51xt|2001 SCC 86 (CanLII)|[2001] 3 SCR 823}}{{perSCC-H|Arbour J}}{{atL|51xt|27}}<br>
{{CanLIIRx|Vader|gvl30|2016 ABQB 625 (CanLII)}}{{perABQB|DRG Thomas J}}{{atL|gvl30|10}}<br>
</ref> 

A finding of a mistrial is a discretionary power of the trial judge.<ref>
{{CanLIIRP|GC|hrv5k|2018 ONCA 392 (CanLII)|146 WCB (2d) 332}}{{TheCourtONCA}}{{atL|hrv5k|3}}<br>
{{supra1|Khan}}{{atL|51xt|79}}<br>
</ref>
The Judge must "assess whether there is a real danger that trial fairness has been compromised."<ref>
{{supra1|GC}}{{atL|hrv5k|3}}<br>
{{supra1|Khan}}{{atL|51xt|79}}<br>
</ref>

A mistrial will also arise where there is an apprehension of bias.<ref>
{{CanLIIRP|Burke|51r4|2002 SCC 55 (CanLII)|164 CCC (3d) 385}}{{perSCC-H|Major J}}{{atL|51r4|74}}<br>
see also [[Reasonable Apprehension of Bias]]<br>
</ref>

; Pre-Condition to a Mistrial
A declaration of a mistrial "should only be granted as a last resort, in the clearest of cases and where no remedy short of that relief will adequately redress the actual harm occasioned."<ref>
{{ibid1|Toutissani}}{{atL|1tnlx|9}}<br>
{{CanLIIRP|Karim|2f4kb|2010 ABCA 401 (CanLII)|493 AR 312}}{{TheCourtABCA}}{{atL|2f4kb|27}} - a mistrial should be allowed only in "the clearest of cases where there is no other way to save the trial"<br>
{{CanLIIRP|GC|hrv5k|2018 ONCA 392 (CanLII)|146 WCB (2d) 332}}{{TheCourtONCA}}{{atL|hrv5k|4}} ("A mistrial is a remedy of last resort...")<br>
</ref> 
In a jury trial, a mistrial can only be ordered if the prejudice cannot be remedied by a jury instruction.<ref>
{{CanLIIRP|Truscott|htwpr|1960 CanLII 474 (ON CA)|126 CCC 136}}{{perONCA|Porter CJ}}<br>
{{CanLIIRx|Burnett|g332q|2014 MBQB 23 (CanLII)}}{{perMBQB|Menzies J}}{{atL|g332q|19}}<br>
</ref>
The decision to grant an application for a mistrial is discretionary.<ref>
{{CanLIIRP|Grant (I.M.)|226wc|2009 MBCA 9 (CanLII)|240 CCC (3d) 462}}{{perMBCA|Chartier JA}}{{atL|226wc|69}}<br>
{{supra1|GC}}{{atL|hrv5k|4}}<br>
</ref>

An appellate court should only intervene where the decision "is so clearly wrong as to amount to an injustice".
<ref>
{{ibid1|Grant}}{{atL|226wc|69}}
</ref>

For an application for a mistrial the test is "whether the appellant’s ability to make full answer and defence has been impaired." <ref>
{{CanLIIRP|T(LA)|1npp1|1993 CanLII 3382 (ON CA)|[1993] OJ No 1605, 84 CCC (3d) 90}}{{perONCA|Lacourciere JA}}{{atL|1npp1|8}}</ref>

Other remedies, such as mid-trial instructions, should be considered before a mistrial is granted.<ref>
{{supra1|Toutissani}}</ref>

; Impairment of Full Answer and Defence 
{{seealso|Right to Make Full Answer and Defence}}
The impairment of full answer and defence is not limited to the accused's ability to respond to the merits of the case but also the ability to make "process-oriented" challenge to the proceedings.<ref>
{{CanLIIRx|Sandeson|j89pm|2020 NSCA 47 (CanLII)}}{{perNSCA|Farrar JA}}
</ref>
 
; Mistrial After Judge's Verdict
A trial judge who convicts an accused but has not yet sentenced him is not ''functus'' in respect of the charge any may still vacate the finding before sentencing.<ref>
{{CanLIIRP|Henderson|1hzz6|2004 CanLII 33343 (ON CA)|189 CCC (3d) 447}}{{perONCA|Feldman JA}} (3:0){{AtL|1hzz6|29}} ("...where a trial judge convicts an accused but has not yet sentenced him or her, the trial judge is not functus in respect of that charge, and can, in exceptional circumstances, vacate the adjudication of guilt before sentencing...")<br>
{{CanLIIRP|Lessard|htwlv|1976 CanLII 1417 (ON CA)|30 CCC (2d) 70}}{{perONCA-H|Martin JA}}{{atps|73 to 75}}
</ref>

; Mistrial After Jury Verdict
The authority of a judge to order a mistrial after a jury renders a verdict is "extremely limited."<ref>
{{ibid1|Henderson}} ("A judge’s jurisdiction to alter a jury’s verdict, order a stay or declare a mistrial after a jury verdict is extremely limited.")
</ref>

Interference with a jury verdict is permitted where:<ref>
{{CanLIIRx|Miguel Orlando Zavala-Martinez|hxhj9|2019 ONSC 1087 (CanLII)}}{{perONSC|Allen J}}{{atL|hxhj9|8}}
</ref>
# the jury does not render the verdict it intended; or
# where the accused wants to raise the defence of entrapment.

Where an exception does not apply, the judge is ''functus''.<ref>
{{ibid1|Zavala-Martinez}}
</ref>

Ineffective legal assistance is not a valid ground for a mistrial after verdict.<ref>
{{ibid1|Zavala-Martinez}}{{atL|hxhj9|12}}
</ref>

; Timing of Application
Courts have jurisdiction to grant a mistrial even after a conviction but before sentencing.<ref>
{{CanLIIRx|Andersen|hrq5r|2018 BCSC 587 (CanLII)}}{{perBCSC|Weatherill J}}
</ref>

; Scheduling of a Re-Trial
A retrial should be scheduled "without further delay". Only a "short period" of delay will be expected. Anything longer may open the possibility of a s. 11(b) Charter delay.<ref>
{{CanLIIRP|Brace|2d17m|2010 ONCA 689 (CanLII)|261 CCC (3d) 455}}{{perONCA|Juriansz JA}}{{atL|2d17m|15}}<br>
see also [[Right to a Trial Within a Reasonable Time]]<br>
</ref>

; Mistrial as Abuse of Process
There is some suggestion that the Crown seeking a mistrial to provide an opportunity to strengthen the case against the accused and cover for negligent preparations may be considered abusive and warrant a stay under s. 7 of the Charter.<ref>
{{CanLIIRP|D(TC)|g94vh|1987 CanLII 6777 (ON CA)|38 CCC (3d) 434}}{{perONCA-H|Martin JA}}{{atp|447}} (CCC) (" In my view, however, s. 7 of the Charter constitutionalizing the requirement of "fundamental justice" might, in some circumstances, bar a second trial where the first trial has been improperly terminated. By way of example only, I consider that if, upon a breakdown of the Crown's case, a judge were to declare a mistrial in order to give the prosecution an opportunity to strengthen its case against the accused by endeavouring to find additional witnesses thereby depriving the accused of an acquittal where the Crown's initial preparation had been negligent, a second trial in those circumstances would contravene the principles of fundamental justice. ")<br>
see also {{CanLIIRP|Pan|1f9fv|1999 CanLII 3720 (ON CA)|134 CCC (3d) 1}}{{perONCA|McMurtry CJ, Osborne, Labrosse and Charron JJA}} aff'd {{CanLIIRP|Pan; Sawyer|5203|2001 SCC 42 (CanLII)|[2001] 2 SCR 344}}
</ref>

{{reflist|2}}

==Consequence of Mistrial on Future Matters==
Where a mistrial is declared, the rulings on pre-trial motions will generally still apply if the prosecution is re-initiated.<ref>
{{CanLIIRP|Lee|1cd65|2002 CanLII 8304 (ON CA)|170 CCC (3d) 225}}{{perONCA|MacPherson JA}}
</ref>

Section 653.1 states:
{{quotation2|
; Mistrial — rulings binding at new trial
653.1 In the case of a mistrial, unless the court is satisfied that it would not be in the interests of justice, rulings relating to the disclosure or admissibility of evidence or the ''Canadian Charter of Rights and Freedoms'' that were made during the trial are binding on the parties in any new trial if the rulings are made — or could have been made — before the stage at which the evidence on the merits is presented.
<br>
{{LegHistory10s|2011, c. 16}}, s. 14.
|{{CCCSec2|653.1}}
|{{NoteUp|653.1}}
}}

This section is considered a "departure from previous authority from the Supreme Court of Canada to the effect that a trial judge is not bound by interlocutory rulings made at an earlier trial."<ref>
{{CanLIIRx|Davis|ft4lb|2012 ONSC 5526 (CanLII)}}{{perONSC|Baltman J}}{{atL|ft4lb|14}}<br>
</ref>
Its purpose is to ensure that the consequences of a mistrial are minimized and that cretian issues do not have to be re-litigated on retrial.<ref>
{{CanLIIRP|Victoria|hv666|2018 ONCA 69 (CanLII)|359 CCC (3d) 179}}{{TheCourtONCA}} (3:0)<br>
</ref>

Section 653.1 applies to rulings that relate to (1) disclosure; (2) admissibility of evidence; or (3) the Charter.<ref>
{{ibid1|Victoria}}{{atL|hv666|51}}<br>
</ref>

; Presumptions Relating to Prior Rulings
This presumption to maintaining prior ruling can be rebutted on a balance of probabilities where it is in the "interests of justice."<ref>
{{ibid1|Victoria}}{{atL|hv666|52}}
</ref>

; Interests of Justice
"Interests of justice" are not limited to the interest of the parties but also the "broad-based societal concerns."<ref>
{{ibid1|Victoria}}{{atL|hv666|53}}
</ref>

Rebuttal of the presumption can include considerations such as:<ref>
{{ibid1|Victoria}}{{atL|hv666|55}}</ref>
# whether any new evidence will be tendered on the proposed rehearing;
# whether any new arguments will be advanced on the proposed rehearing and the apparent merit, if any, of those arguments;
# the interests of the parties, including any articulable prejudice fostered or perpetuated by the inability to relitigate any issue previously decided;
# the public interest in the timely and efficient conduct of criminal trial proceedings and avoidance of unnecessary and duplicative proceedings;
# any changes in the legal principles governing the ruling on which relitigation is proposed;
# the nature of the evidentiary record on the basis of which the prior ruling was made, as for example, viva voce testimony; agreed statement of facts; transcripts of testimony given elsewhere and any differences in the record proposed for relitigation;
# the nature of the issue(s) involved in the prior ruling and proposed relitigation;
# the possibility of inconsistent rulings; and
# any other circumstances relating to the balance of the subsequent trial proceedings that may have an impact on the continued applicability of the prior rulings.

{{reflist|2}}

==Circumstances for a Mistrial==
A mistrial may be ordered where:
* an opening address and cross-examination refers to a confession that is later determined inadmissible.<ref>
{{CanLIIRP|Lizotte|gdczk|1980 CanLII 2957 (QC CA)|[1980] 61 CCC (2d) 423}}{{perQCCA|Kaufman JA}}
</ref>

A mistrial will not be ordered where the accused fires trial counsel mid-trial and the new counsel wishes to have re-done the trial in a different manner. There is no right to start over again with new counsel.<ref>
{{CanLIIRx|Ramos|jbtj6|2020 MBCA 111 (CanLII)}}{{perMBCA|Mainella JA}}{{atsL|jbtj6|139| to 141}}
</ref>

{{Reflist|2}}