R v Luo, 2021 ABQB 188

Court of Queen’s Bench of Alberta Citation: R v Luo, 2021 ABQB 188 Date: 20210309 Docket: 190020834Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Jie Luo Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the victim or a witness must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Reasons for Decision on the Defence Mistrial Application of the Honourable Mr. Justice M.

David Gates _______________________________________________________ Introduction and Overview [ 1 ] Jie Luo (“the Accused”) is charged with sexual assault alleged to have taken place on January 4, 2019, at or near Cochrane, Alberta. His trial, without a jury, commenced on February 24, 2020. [ 2 ] On February 27, 2020, during the cross-examination of the Crown’s final witness, JFH, Defence counsel became aware of

information that led him to conclude that he required the complainant to be recalled for further cross-examination. The Crown, about to close its Crown’s case, took the position that it did not wish to apply to recall the complainant, though did not oppose the Defence request for further cross-examination. The Crown then closed its case. At that point, the Defence confirmed that it intended to call evidence in the trial, including the evidence of the Accused. The Defence also asked that the complainant be recalled for further cross-examination.

While the precise scope of the further cross-examination was not determined at that point, the Crown was directed to use best efforts to secure the re-attendance of the complainant the following day, February 28, 2020. [ 3 ] The complainant returned to court on February 28, 2020. Prior to taking the witness stand, she revealed to the Crown that, subsequent to learning of the need to return to court for further questioning, she received several Mandarin text messages suggesting that the matter could be resolved and asking her not to attend court.

The source of these text messages was not disclosed. [ 4 ] On the basis of this new information, and with the agreement of both the Crown and the Defence, the trial was adjourned to allow time for the RCMP to investigate possible witness interference. [ 5 ] The RCMP investigation ultimately determined that the Accused had no role whatsoever in the alleged attempts to dissuade the complainant from continuing her testimony in this proceeding. The investigation led, however, to the disclosure to the Crown, and then to the Defence, of over 3,000 pages of new material.

This new material included several short videos recorded by the complainant on the date of the alleged offence. On the basis of this new disclosure and other alleged concerns relating to the conduct of the trial, the Defence applied for a mistrial. [ 6 ] The mistrial application was heard by me on February 10, 2021. At the conclusion of the oral submissions of counsel, I granted the Defence application and declared a mistrial. I also indicated that I would provide short written reasons for this decision. These are my reasons for decision.

The Facts [ 7 ] The trial of this matter commenced on February 24, 2020, and was scheduled for a period of 4 days. At the outset of the trial, counsel for the Accused applied to adjourn the trial in order to file a s 276 Criminal Code application. After hearing oral submissions from both counsel, I reluctantly dismissed the application for an adjournment, and directed that the trial should proceed. [ 8 ] The Crown called a total of seven witnesses. All of these witnesses, save for two expert witnesses, required simultaneous translation from Mandarin to English.

Significant difficulties were encountered as a result of alleged inaccuracies in the translation provided to the court. In part, some of these difficulties involved differences in dialects within the Mandarin language. Other issues arose regarding the availability and scheduling of the Mandarin-speaking translators providing simultaneous translation to the court. [ 9 ] Early in the trial, it became apparent that the trial could not be completed within the allocated time and that further time would be required.

Due to scheduling issues, it was not possible for the trial to simply run overtime. [ 10 ] As outlined above, the trial was adjourned on February 28, 2020, to allow the RCMP to investigate possible witness interference. It is common ground between the parties that this investigation took considerably longer than originally anticipated. The trial was initially adjourned to June 1, 2020, but brought forward to May 15, 2020, on account of the Covid-19 pandemic.

At that point, the matter was further adjourned to August 21, 2020, and then to August 25, 2020, September 18, 2020, October 23, 2020, and then to December 4, 2020. By December 4, 2020, the Crown was ready to continue the trial and advised that it intended to seek to re-open the Crown’s case to recall the complainant and at least one of the civilian witnesses who had already testified on behalf of the Crown. At the same time, the Defence advised that it intended to seek a mistrial.

The hearing of the Crown’s application to re-open its case, as well as the Defence’s mistrial application, was originally scheduled to be heard on January 26, 2021, but was set over to February 10, 2021. [ 11 ] The RCMP investigation into a possible attempt to interfere with a witness concluded that the Accused was not involved in any inappropriate discussions that may have taken place with the complainant on February 27, 2020, prior to the time set for her to return to court to continue her cross-examination.

No further information was provided to the court regarding the results of this police investigation. [ 12 ] After the trial was adjourned on February 28, 2020, but before the trial resumed on February 10, 2021, the Crown provided significant additional disclosure to the Defence. In particular, the Defence says that it received over 3000 pages of written material pertaining to the police investigation of possible witness interference. The Defence concedes that this information was not in the possession of either the police or the Crown prior to the adjournment of the trial.

As such, there is no suggestion that either the police or the Crown withheld disclosure that it was otherwise obliged to provide prior to trial, or up to the adjournment of the trial on February 28, 2020. [ 13 ] Subsequent to the adjournment of the trial, the complainant disclosed to the police that she was in possession of a series of short video clips that she recorded on her cell phone on the date of the alleged offence.

This material includes video recordings of the Accused and the complainant together at a restaurant on the evening of the alleged offence, photographs of the complainant and others at the same restaurant, and text messages written in Mandarin between the complainant and at least one other Crown witness.

While these video clips and text messages obviously existed prior to the institution of criminal charges in this instance, the Defence concedes that their non-disclosure was entirely the result of the complainant’s failure to bring the existence of this material to the attention of the police in a timelier fashion.

Again, there is no suggestion that either the police or the Crown withheld disclosure. [ 14 ] During the hearing of this application, counsel for both the Crown and the Defence also disclosed that they have recently learned of the existence of civil proceedings instituted by the complainant against the Accused relative to this alleged sexual assault. Formal questioning under the Alberta Rules of Court has taken place in relation to both the complainant and the Accused. Transcripts of this questioning are, however, not yet available.

In their oral submissions before me, both the Crown and the Defence suggest that there is some considerable uncertainty as to what use, if any, may be made of such transcripts in these criminal proceedings. Both counsel

agree that a further court application may be required to obtain a ruling on this issue. The Law [15] Trial Judges have broad common law power to declare mistrials where there is a real danger of prejudice to an accused or apossible miscarriage of justice. The determination of an appropriate remedy in these types of situations is highly case-specific. [16] In R v Cawthorne, 2016 SCC 983, McLachlin CJC, writing for a unanimous court, held, at paragraph 39: The legal principles on the granting of a mistrial were discussed by LeBel J. in his reasons in R v Khan, 2001 SCC 86, [2001] 2 S.C.R.823.

Once an error has occurred at trial, the trial judge may, in deciding whether to grant a mistrial, consider whether the error has beenor can be remedied at trial: para 79.

The decision of whether to grant a mistrial “falls within the discretion of the judge, who must assesswhether there is a real danger that trial fairness has been compromised”: ibid. that discretion is not absolute, but “it’s exercise must notbe routinely second-guessed by the Court of Appeal”: ibid. [17] Continuing at paragraph 41, Chief Justice McLachlin stated: In my view, the military judge did not error in declining to grant the motion for a mistrial.

As LeBel J. stated in Khan, at paras. 80 – 82: A decision on whether and incident has affected trial fairness in a way which would warrant declaring a mistrial must consider anycorrective measure which has been brought, or could be brought, by the judge to remedy the irregularity… Thus, when a trial judge recognized that an error has occurred but decides not to order a mistrial, the court should consider the remedyselected by the judge, if any, is one of the elements in its assessment of whether the trial has been or has appeared unfair. [18] The Supreme Court also considered the scope of a trial judge’s discretion to grant a mistrial in R v Burke, 2007 SCC 55.

Atparagraphs 74 – 75, Major J stated: There are broad common law powers to declare a mistrial.

Mistrials have been ordered or considered as a potential solution in a range of situations: where a jury member is discharged (R c Taillefer (1995) (QC CA), 40 C.R. (4th) 287 (Que CA), leave toappeal refused, [1996] 1 SCR x (SCC); and R c Lessard (1992), (QC CA), 74 CCC (3d) 552, [1992] RJQ 1205 (QueCA), leave to appeal refused, [1992] 3 SCR vii (SCC)); where inadmissible evidence is adduced during trial which might influence thejury (R v Woods (1989) 49 CCC (3d) (Ont CA) [1990] 2 SCR xii (SCC)); where there is inadmissible communication between a witnessand a juror causing prejudice (R v Martineau (1986), 33 CCC (3d) 126 (Alta CA)); R v T. (L.A.) (1993), (ON CA), 84CCC (3d) 90 (Ont CA)); and where the jury had already rendered a verdict but had not decided on the issue of mental disorder, making itimpossible for the judge to enter the intended conviction without “taint” (R v Rondeau, [1998] OJ No 5759 (Ont Gen Div)).

Thecommon theme running through this case light is the test of whether there is a [translation] “real danger” of prejudice to the accused ordanger of a miscarriage of justice: Lessard, supra, at p 562 CCC. In declaring a mistrial, the trial judge therefore turns his or her mind to the question of whether a mistrial is needed to prevent amiscarriage of justice. This determination will necessarily involve an examination of the surrounding circumstances.

Injustice to theaccused is of particular concern, given that the state with all its resources acts as the singular antagonist of the individual accused in acriminal case. This factor should be balanced against other relevant factors, such as the seriousness of the events, protection of the publicand bringing the guilty to justice. Analysis [19] The Defence maintains that the timely disclosure of this material may have impacted the decisions taken by the Accusedrelative to mode of trial, as well as the defence strategies employed in the conduct of the defence.

He says that the defence theoryadvanced would not have been the same if he had been provided with this disclosure in a timely fashion. He also says that he would haveadopted a different strategy in his cross examination of the complainant if he had been aware of the full results of the policeinvestigation.

While he concedes that he is not precluded from using this new information in the conduct of the defence portion of thetrial, he urges the court to recognize the handicap created by the necessity to split his cross-examination of the complainant, particularlygiven the passage of time since she gave her initial evidence.

In short, the Defence says that no remedy short of a mistrial is sufficient toaddress the potential prejudice occasioned to the Accused in this instance. [20] Referring to the Supreme Court’s decision in Khan, the Defence urges the Court to find that the issue to be resolved in thisinstance is whether or not there is a real danger that trial fairness has been compromised as a result of late disclosure: at para 79. [21] The Crown opposes the Defence application for a mistrial.

According to the Crown any potential prejudice to the Defencemust be considered in light of the fact that he has not yet been put to his election and, as such, has the ability to structure his defence withfull knowledge of the new information that has come to light and the results of his further questioning of the complainant.

The Crownrelies on the decision of the Supreme Court in R v Khan, 2001 SCC 86, as well as the decision of Shriar PCJ in R v Littlejohn, 2017ABPC 163, a decision subsequently upheld by the Court of Appeal: R v Littlejohn, 2020 ABCA 151. [22] I accept the Defence assertion that the complainant’s credibility, or alleged lack thereof, is the essence of the defence strategyI also accept the defence contention that some are all of this recently disclosed material will very likely be relevant to the assessment ofthe complainant’s credibility in this trial. [23] The Crown’s disclosure obligations in criminal proceedings are very well known.

The nature and scope of such obligationsare fully set out in such cases as R v Stinchcombe, (SCC), [1991] 3 SCR 326, R v McNeil, 2009 SCC 6, and other

decisions. The onus is clearly on the Crown to justify the non-disclosure of any material in its possession. Even prior to the SupremeCourt’s landmark decision in Stinchcombe, it was well recognized that police agencies had an obligation to disclose to the Crown “allmaterial pertaining to the investigation of an accused”: McNeil, at para 23-24. The Crown also bears the onus to justify late disclosure. [24] The typical or common remedy for late or non-disclosure is a disclosure order combined with an adjournment to permit thedefence to assess the new material.

However, the range of judicial remedies available in such circumstances extends beyond the grantingof disclosure orders and adjournments to encompass such other remedies as judicial stays, cost awards, the exclusion of evidence, therecalling of witnesses and, in appropriate circumstances, mistrial declarations. [25] In R v T(LA) (1993) (ON CA), 84 CCC (3d) 90 (ONCA), the accused was charged with a series of sexualoffences involving his daughter and step-daughter over a number of years.

At issue before the Ontario Court of Appeal was the latedisclosure of a statement obtained from the sister of one of the complainants in which the complainant disclosed that she had beenassaulted by someone other than the accused. The defence initially sought a stay of proceedings, but alternatively a mistrial, alleging thathe might not have re-elected to judge alone and would have conducted his cross-examination of the complainant differently had he beenaware of the content of the statement.

The defence maintained that it had been “irrevocably prejudiced” as a result of the late disclosureof the statement, and that his ability to make full answer and defence had been impaired, resulting in an unfair trial. [26] The trial judge dismissed the application for a stay of proceedings and a mistrial on the basis that the failure to disclose thestatement was an oversight. The trial judge did, however, propose recalling the complainant as well as an expert witness called by theCrown, for further cross-examination.

On appeal, the Court of Appeal allowed the appeal, quashed the convictions entered at trial, anddirected a new trial. Lacourciere JA for the Court stated (at p 93-94): I agree with counsel for the appellant that the reason for the late disclosure was not relevant on the application for a mistrial. While thereason for the late disclosure may be relevant if it amounts to abuse of process leading to a proper application for a stay of proceedings,this was clearly not the present case.

The defence had certainly not suggested that the prosecutor had been influenced by an obliquemotive: see Lemay v R, (SCC), [1952] 1 SCR 232, 102 CCC 1. The proper test on an application for a mistrial is, ofcourse, whether the appellant’s ability to make full answer and defence has been impaired. Did the failure to disclose create suchprejudice that it cannot be said with certainty that the appellant received a fair trial?

In R v C (M.H.), (SCC), [1991] 1SCR 763, McLachlin J, delivering the judgement of the court, said: Had counsel for the appellant been aware of the statement, he might well have decided to use it in support of the defence that theevidence of the complainant was a fabrication. In my view, that evidence could conceivably have affected the jury’s conclusions on theonly real issue, the respective credibility of the complainant and the appellant. [27] The reason for the late disclosure of the video clips in this instance is different than the reason for the non-disclosure of thestatement in T (LA).

However, the potential prejudice to the accused’s right to a fair trial is the same. As such, I agree with the OntarioCourt of Appeal’s conclusion that the reason for the late disclosure is not relevant on this application for a mistrial. Rather, the focus ofthis inquiry must be on the actual or potential effects of this late disclosure. [28] As in T (LA), I accept the Defence contention that the Accused may well have elected a different mode of trial if he had beenfully apprised of all of the available evidence.

Likewise, the Defence may well have elected different trial tactics or strategies if fullyaware of the case that it had to meet in this instance. In my view, the fact that the Defence will have an opportunity to continue the cross-examination of the complainant relative to this new evidence – and to further cross-examine the other Crown witnesses – does notalleviate the potential prejudice. As noted by the Ontario Court of Appeal in T (LA), “[T]he critical opportunity to attack the credibilityof the complainant Carolyn P. was considerably, and arguably, irredeemably reduced”: at p 95.

The potential prejudice to the Accusedcannot be remedied simply by extending to the Defence a broad right to further cross-examine the complainant. [29] In considering an appropriate remedy for the late disclosure of this material, I take into consideration all of the surroundingcircumstances relating to this matter. The very lengthy delay between the adjournment of the trial in February 2020, and its likelyresumption several months from now, is a factor that weighs in favour of a mistrial.

While transcripts and audio recordings of theevidence received in February 2020, are obviously available, the bifurcation of this trial over such an extended period of time creates arisk of prejudice to the Accused’s and, indeed, the public’s, right to a fair trial. The significant difficulties encountered during the firstpart of the trial relative to the extensive simultaneous translation required for virtually all of the Crown witnesses is also a factor thatfavours a new trial.

Furthermore, the as yet to be determined use that may be made of the transcripts of the questioning of the Accusedand the complainant in the civil proceeding also supports a conclusion that a new trial is necessary in these unique circumstances. [30] For all of the foregoing reasons, I have reluctantly concluded that the Accused right to make full answer and defence has beenimpaired in this instance. In my view, the only appropriate remedy in such circumstances is to grant a mistrial. Conclusion [31] The Defence application for a mistrial is granted.

The parties are directed to appear in Criminal Appearance Court on Friday,February 19, 2021, at 8:30 AM to set a new trial date. Heard on the 10th day of February, 2021. Dated at the City of Calgary, Alberta this 9th day of March, 2021.

M. David Gates J.C.Q.B.A. Appearances: E. Vomberg for the Crown A. Hepner Q.C for the Accused