Mistrials: Difference between revisions
No edit summary |
No edit summary |
||
| Line 3: | Line 3: | ||
<!-- --> | <!-- --> | ||
A mistrial is a remedy where it "is necessary to prevent a miscarriage of justice".<Ref> | A mistrial is a remedy where it "is necessary to prevent a miscarriage of justice".<Ref> | ||
R v Burke [http://canlii.ca/t/51r4 2002 SCC 55] (CanLII) at para 75<br> | R v Burke [http://canlii.ca/t/51r4 2002 SCC 55] (CanLII){{perSCC| J}} at para 75<br> | ||
see also R v Chiasson, [http://canlii.ca/t/26jbs 2009 ONCA 789] (CanLII)<br> | see also R v Chiasson, [http://canlii.ca/t/26jbs 2009 ONCA 789] (CanLII){{perONCA| JA}}<br> | ||
R v Toutissani, [http://canlii.ca/t/1tnlx 2007 ONCA 773] (CanLII), [2007] O.J. No. 4364<br> | R v Toutissani, [http://canlii.ca/t/1tnlx 2007 ONCA 773] (CanLII), [2007] O.J. No. 4364{{perONCA| JA}}<br> | ||
</ref> | </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> | 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> | ||
R v Khan, [http://canlii.ca/t/51xt 2001 SCC 86] (CanLII) | R v Khan, [http://canlii.ca/t/51xt 2001 SCC 86] (CanLII){{perSCC|Arbour J}}, at para 27<br> | ||
R v Vader, [http://canlii.ca/t/gvl30 2016 ABQB 625] (CanLII) at para 10<br> | R v Vader, [http://canlii.ca/t/gvl30 2016 ABQB 625] (CanLII){{perABQB| J}} at para 10<br> | ||
</ref> | </ref> | ||
A finding of a mistrial is a discretionary power of the trial judge.<ref> | A finding of a mistrial is a discretionary power of the trial judge.<ref> | ||
R v GC, [http://canlii.ca/t/hrv5k 2018 ONCA 392] (CanLII) at para 3<br> | R v GC, [http://canlii.ca/t/hrv5k 2018 ONCA 392] (CanLII){{perONCA| JA}} at para 3<br> | ||
Khan{{supra}} at para 79<br> | Khan{{supra}} at para 79<br> | ||
</ref> | </ref> | ||
| Line 22: | Line 22: | ||
A mistrial will also arise where there is an apprehension of bias.<Ref> | A mistrial will also arise where there is an apprehension of bias.<Ref> | ||
R v Burke, [http://canlii.ca/t/51r4 2002 SCC 55] (CanLII) | R v Burke, [http://canlii.ca/t/51r4 2002 SCC 55] (CanLII){{perSCC|Major J}} at para 74<Br> | ||
see also [[Reasonable Apprehension of Bias]]<br> | see also [[Reasonable Apprehension of Bias]]<br> | ||
</ref> | </ref> | ||
| Line 29: | Line 29: | ||
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> | 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> | ||
R v Toutissani{{ibid}} at para 9<br> | R v Toutissani{{ibid}} at para 9<br> | ||
R v Karim, [http://canlii.ca/t/2f4kb 2010 ABCA 401] (CanLII) at para 27 - a mistrial should be allowed only in "the clearest of cases where there is no other way to save the trial"<br> | R v Karim, [http://canlii.ca/t/2f4kb 2010 ABCA 401] (CanLII){{perABCA| JA}} at para 27 - a mistrial should be allowed only in "the clearest of cases where there is no other way to save the trial"<br> | ||
R v GC, [http://canlii.ca/t/hrv5k 2018 ONCA 392] (CanLII) at para 4 ("A mistrial is a remedy of last resort...")<br> | R v GC, [http://canlii.ca/t/hrv5k 2018 ONCA 392] (CanLII){{perONCA| JA}} at para 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> | </ref> In a jury trial, a mistrial can only be ordered if the prejudice cannot be remedied by a jury instruction.<ref> | ||
R v Truscott (1960), 126 CCC 136, [http://canlii.ca/t/htwpr 1960 CanLII 474] (ON CA), | R v Truscott (1960), 126 CCC 136, [http://canlii.ca/t/htwpr 1960 CanLII 474] (ON CA),{{perONCA|Porter CJ}}<br> | ||
R v Burnett, [http://canlii.ca/t/g332q 2014 MBQB 23] (CanLII) at para 19<br> | R v Burnett, [http://canlii.ca/t/g332q 2014 MBQB 23] (CanLII){{perMBQB| J}} at para 19<br> | ||
</ref> | </ref> | ||
The decision to grant an application for a mistrial is discretionary.<Ref> | The decision to grant an application for a mistrial is discretionary.<Ref> | ||
R v Grant (I.M.), [http://canlii.ca/t/226wc 2009 MBCA 9] (CanLII) at para 69<Br> | R v Grant (I.M.), [http://canlii.ca/t/226wc 2009 MBCA 9] (CanLII){{perMBCA| JA}} at para 69<Br> | ||
GC{{supra}} at para 4<br> | GC{{supra}} at para 4<br> | ||
</ref> | </ref> | ||
| Line 46: | Line 46: | ||
For an application for a mistrial the test is "whether the appellant’s ability to make full answer and defence has been impaired." <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> | ||
R v T(LA) [http://canlii.ca/t/1npp1 1993 CanLII 3382] (ON CA), [1993] O.J. No. 1605, 84 CCC (3d) 90 (Ont. C.A.) at para 8 </ref> | R v T(LA) [http://canlii.ca/t/1npp1 1993 CanLII 3382] (ON CA), [1993] O.J. No. 1605, 84 CCC (3d) 90 (Ont. C.A.){{perONCA| JA}} at para 8 </ref> | ||
Other remedies, such as mid-trial instructions, should be considered before a mistrial is granted.<Ref> | Other remedies, such as mid-trial instructions, should be considered before a mistrial is granted.<Ref> | ||
| Line 53: | Line 53: | ||
'''Timing of Application'''<br> | '''Timing of Application'''<br> | ||
Courts have jurisdiction to grant a mistrial even after a conviction but before sentencing.<ref> | Courts have jurisdiction to grant a mistrial even after a conviction but before sentencing.<ref> | ||
R v Andersen, [http://canlii.ca/t/hrq5r 2018 BCSC 587] (CanLII) | R v Andersen, [http://canlii.ca/t/hrq5r 2018 BCSC 587] (CanLII){{perBCSC| J}} | ||
</ref> | </ref> | ||
'''Consequence of Mistrial on Future Matters'''<br> | '''Consequence of Mistrial on Future Matters'''<br> | ||
Where a mistrial is declared, the rulings on pre-trial motions will generally still apply if the prosecution is re-initiated.<ref> | Where a mistrial is declared, the rulings on pre-trial motions will generally still apply if the prosecution is re-initiated.<ref> | ||
R v Lee, [http://canlii.ca/t/1cd65 2002 CanLII 8304] (ON CA) | R v Lee, [http://canlii.ca/t/1cd65 2002 CanLII 8304] (ON CA){{perONCA| JA}} | ||
</ref> | </ref> | ||
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> | 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> | ||
R v Davis, [http://canlii.ca/t/ft4lb 2012 ONSC 5526] (CanLII) at para 14, per Baltman J<br> | R v Davis, [http://canlii.ca/t/ft4lb 2012 ONSC 5526] (CanLII){{perONSC| J}} at para 14, per Baltman J<br> | ||
</ref> | </ref> | ||
'''Scheduling of a Re-Trial'''<br> | '''Scheduling of a Re-Trial'''<br> | ||
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> | 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> | ||
R v Brace, [http://canlii.ca/t/2d17m 2010 ONCA 689] (CanLII), at para 15<br> | R v Brace, [http://canlii.ca/t/2d17m 2010 ONCA 689] (CanLII){{perONCA| JA}}, at para 15<br> | ||
see also [[Right to a Trial Within a Reasonable Time]]<br> | see also [[Right to a Trial Within a Reasonable Time]]<br> | ||
</ref> | </ref> | ||
| Line 82: | Line 82: | ||
==Circumstances for a Mistrial== | ==Circumstances for a Mistrial== | ||
A mistrial may be ordered where: | A mistrial may be ordered where: | ||
* an opening address and cross- | * an opening address and cross-examination refers to a confession that is later determined inadmissible.<ref> | ||
R v Lizotte, [1980] 61 CCC (2d) 423 (Que. C.A.), [http://canlii.ca/t/gdczk 1980 CanLII 2957] (QC CA) | R v Lizotte, [1980] 61 CCC (2d) 423 (Que. C.A.), [http://canlii.ca/t/gdczk 1980 CanLII 2957] (QC CA){{perQCCA|Kaufman JA}} | ||
</ref> | </ref> | ||
{{Reflist|2}} | {{Reflist|2}} | ||
Revision as of 08:42, 24 December 2018
General Principles
A mistrial is a remedy where it "is necessary to prevent a miscarriage of justice".[1] 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".[2]
A finding of a mistrial is a discretionary power of the trial judge.[3] The Judge must "assess whether there is a real danger that trial fairness has been compromised."[4]
A mistrial will also arise where there is an apprehension of bias.[5]
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."[6] In a jury trial, a mistrial can only be ordered if the prejudice cannot be remedied by a jury instruction.[7]
The decision to grant an application for a mistrial is discretionary.[8]
An appellate court should only intervene where the decision "is so clearly wrong as to amount to an injustice". [9]
For an application for a mistrial the test is "whether the appellant’s ability to make full answer and defence has been impaired." [10]
Other remedies, such as mid-trial instructions, should be considered before a mistrial is granted.[11]
Timing of Application
Courts have jurisdiction to grant a mistrial even after a conviction but before sentencing.[12]
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.[13]
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".[14]
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.[15]
Section 653.1 states:
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.
2011, c. 16, s. 14.
– CCC
- ↑
R v Burke 2002 SCC 55 (CanLII), per J at para 75
see also R v Chiasson, 2009 ONCA 789 (CanLII), per JA
R v Toutissani, 2007 ONCA 773 (CanLII), [2007] O.J. No. 4364, per JA
- ↑
R v Khan, 2001 SCC 86 (CanLII), per Arbour J, at para 27
R v Vader, 2016 ABQB 625 (CanLII), per J at para 10
- ↑
R v GC, 2018 ONCA 392 (CanLII), per JA at para 3
Khan, supra at para 79
- ↑
GC, supra at para 3
Khan, supra at para 79
- ↑
R v Burke, 2002 SCC 55 (CanLII), per Major J at para 74
see also Reasonable Apprehension of Bias
- ↑
R v Toutissani, ibid. at para 9
R v Karim, 2010 ABCA 401 (CanLII), per JA at para 27 - a mistrial should be allowed only in "the clearest of cases where there is no other way to save the trial"
R v GC, 2018 ONCA 392 (CanLII), per JA at para 4 ("A mistrial is a remedy of last resort...")
- ↑
R v Truscott (1960), 126 CCC 136, 1960 CanLII 474 (ON CA),, per Porter CJ
R v Burnett, 2014 MBQB 23 (CanLII), per J at para 19
- ↑
R v Grant (I.M.), 2009 MBCA 9 (CanLII), per JA at para 69
GC, supra at para 4
- ↑ Grant, ibid. at para 69
- ↑ R v T(LA) 1993 CanLII 3382 (ON CA), [1993] O.J. No. 1605, 84 CCC (3d) 90 (Ont. C.A.), per JA at para 8
- ↑ Toutissani, supra
- ↑ R v Andersen, 2018 BCSC 587 (CanLII), per J
- ↑ R v Lee, 2002 CanLII 8304 (ON CA), per JA
- ↑
R v Davis, 2012 ONSC 5526 (CanLII), per J at para 14, per Baltman J
- ↑
R v Brace, 2010 ONCA 689 (CanLII), per JA, at para 15
see also Right to a Trial Within a Reasonable Time
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.[1]
- ↑ R v Lizotte, [1980] 61 CCC (2d) 423 (Que. C.A.), 1980 CanLII 2957 (QC CA), per Kaufman JA