Court Cases & Orders

When Can a Mistrial be Called?

Written by Russell Alexander ria@russellalexander.com / (905) 655-6335

When Can a Mistrial be Called?

In the face of the pandemic, the embrace of the “Zoom trial” has allowed the Canadian justice system to keep operating.  Innovations in technology, together with procedural adjustments to accommodate for physical distancing, have all made it possible for judges, lawyers, court staff, litigants, and witnesses to participate in court hearings from the comfort of their own homes.

But this necessary adaption has also given rise to new challenges.  The need to preserve the integrity of a remotely-held trial includes ensuring that the evidence of witnesses is free from influence by others. Otherwise, in the right circumstances, the spectre of a mistrial could be raised.

This was the issue in a child protection case called CAS v. J.J., C.M. and Six Nations of the Grand River.  The mother was being cross-examined during a Zoom call that included the judge, lawyers, and court staff.  During a brief court recess, the mother forgot to mute her microphone.  The judge and other participants could briefly hear what she later claimed was merely a playback of a “voice clip” recording from her cellphone that she had opened during the court break.

“The mother was not actually alone in the room during her Zoom cross-examination. This could leave her open to being influenced in her testimony by someone off-camera” – Susanna Crichlow, Associate Lawyer

However, the clip included an unidentified male voice saying the words “how much longer will you be?”; this gave rise to speculation that the was mother lying, and was not actually alone in the room during her Zoom cross-examination. This could leave her open to being influenced in her testimony by someone off-camera.   More troubling was another part of the clearly-audible clip – also broadcast into the virtual courtroom – which suggested the mother was possibly involved in selling drugs, which would essentially raised new child-protection concerns.

The purported “voice clip” was undoubtedly off-the-record, but the mother still requested that a mistrial be declared.  She argued that she could no longer get a fair trial before that judge, that there were no curative measures available, and that there would be a miscarriage of justice if the hearing did proceed. She also claimed the judge and the court staff involved in her child protection Zoom hearing had now become potential witnesses on what had transpired during the break.

This scenario gave rise to important issues about when a mistrial can be declared.  The judge set out the governing principles, as follows:

  • Mistrial orders are in the discretion of the trial judge;
  • A mistrial may be declared where a judge hearing the matter is satisfied that, for any reason, there is a reasonable apprehension that either party will not have a fair trial if the current trial continues (and that a fair trial would be possible if it were to begin afresh before another judge);
  • Mistrials should be ordered only in the clearest of cases, where there has been a “fatal wounding” of the trial process;
  • Mistrials should be granted only as a last resort, where no other curative measure could salvage a just and fair trial; and
  • Parties are entitled to fair trials, not perfect trials.

In view of these factors, the judge ultimately dismissed the mother’s mistrial request. For one thing, her complaints about the judge and court staff potentially having to give evidence were unfounded. Under basic legal principles, the judge herself would never be a compellable witness in a trial.  Moreover it would be a rare scenario that court staff and court reporters would have to given evidence, even though they were technically compellable.

Next, there was no reasonable apprehension of bias.  The judge was satisfied that she would be able to go forward and continue the trial while remaining unprejudiced and unaffected by the inadmissible statements heard during the court recess.  After all, this was a routine part of any judge’s job, when ruling on the inadmissibility of evidence generally.

Finally, there were practical aspects to consider. The proceedings were already lengthy, and the overheard “voice clip” was not going to have an impact on the trial’s outcome in all the circumstances.  These included the fact that some of the substantive allegations against the mother in the child protection case involved her alcohol abuse, not drug abuse or dealing drugs.  The best interests of the child dictated that the hearing should go on.

For the full text of the decision, see:

CAS v. J.J., C.M. and Six Nations of the Grand River, 2021 CarswellOnt 2924, 2021 ONSC 1654, 330 A.C.W.S. (3d) 335, 52 R.F.L. (8th) 306

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About the author

Russell Alexander

Russell Alexander is the founder of Russell Alexander Collaborative Family Lawyers and is the firm’s senior partner. At Russell Alexander, our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues, including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. We have locations in Toronto, Markham, Whitby (Brooklin), Oshawa, Concord, Lindsay, and Peterborough.

For more information, visit our website, or you can call us at: 905-655-6335.