R v TGB, 2023 ABKB 526

Court of King’s Bench of Alberta Citation: R v TGB, 2023 ABKB 526 Date: 20230914 Docket: 210223731Q1 Registry: Calgary Between: His Majesty the King Crown - and - TGB Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify K.T. must not be published, broadcast, or transmitted in any way.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 of the Honourable Justice Colin C.J. Feasby _______________________________________________________ Introduction [ 1 ] The Accused, Mr. B, is charged with sexual assault, sexual interference, uttering threats, and assault with a weapon. The

Complainant is Mr. B’s daughter who was between 5 and 7 years old at the time of the alleged offences. The offences are alleged to have occurred during overnight visits when the Complainant and her siblings were at Mr. B’s home. [ 2 ] Mr. B and his ex-wife, the Complainant’s mother, were engaged in a family law dispute at the time of the alleged offences and afterward. Some facts about these family law matters have been the subject of testimony by Crown witnesses, both in direct and cross-examination.

The Accused believes the testimony about the family law matters and related legal matters to be highly prejudicial to his case, cannot be redressed by a mid-trial instruction to the jury, and seeks a mistrial. What is the Legal Test for an Unfair Trial and Mistrial? [ 3 ] Justice Major in R v Burke , 2002 SCC 55 at para 75 observed that “ [t]here are broad common law powers to declare a mistrial.

Mistrials have been ordered or considered as a potential solution in a range of situations....” He concluded that “[t]he common theme running through this case law is the test of whether there is a “real danger” of prejudice to the accused or danger of a miscarriage of justice.” [ 4 ] Justice McDonald, writing for himself and Watson JA, in R v Stephan , 2017 ABCA 380 at para 63 observed that “declaration of a mistrial is a remedy of last resort, reserved for the clearest of cases....” Similar statements are common in the case law concerning mistrials: see, for example, R v Karim , 2010 ABCA 401 at para 27 ; R v G.(A.) , 2015 ONCA 159 at para 50 ; and R v Vallee , 2022 BCCA 11 at para 47 .

Courts also emphasize the extraordinary nature of the mistrial remedy: R v Wanihadie , 2021 ABCA 173 at para 20 .

Similar descriptions are often used by courts discussing the remedy of a stay of proceedings: see, for example, R v Babos , 2014 SCC 16 at para 31 saying the remedy is reserved for “rare occasions” and the “clearest of cases” and Watson JA’s description of a stay as a “nuclear remedy”: R v Mamouni , 2017 ABCA 347 at para 36 . [ 5 ] The language used by Courts to set the mistrial remedy apart from less drastic remedies, in my respectful view, serves no analytical purpose and may influence trial courts to not grant mistrials where they are warranted.

Emphasizing the extraordinary nature of a remedy, its rarity, or that it is a last resort says nothing about the legal test to be applied; instead, it encourages the trial judge to close her mind to the availability of the remedy. To say something requires a “clear case” implies a different standard of proof than either the civil standard of a balance of probabilities or the criminal standard of beyond a reasonable doubt. In Black v Alberta , 2023 ABKB 123 starting at para 64 , I criticized a similar linguistic turn in recent Charter injunction cases.

Such rhetorical excess is not helpful. [ 6 ] A legal remedy should be commensurate to the wrong to be redressed. This principle applies across all areas of the law. A more drastic remedy should not be granted where a less drastic remedy will suffice. Once the rhetoric of extraordinariness is peeled away, it is obvious that this principle animates the mistrial caselaw.

McDonald JA in Stephan wrote para 63 that a mistrial is an appropriate remedy “where no remedy short of a mistrial will adequately redress the harm occasioned.” Similarly, Hourigan JA in G. (A.) held at para 50 that “[b]efore granting this extraordinary remedy, the court should consider and reject as inadequate other less extreme remedies, such as a mid-trial instruction.” [ 7 ] The Alberta Court of Appeal in R v JMW , 2020 ABCA 294 at para 20 summarized the questions that must be considered by a judge before determining there has been an unfair trial and granting a mistrial stated by LeBel J in his concurring reasons in R v Khan , 2001 SCC 86 at paras 75-85 which were cited with approval in R v Davey , 2012 SCC 75 at para 50 and R v Cawthorne , 2016 SCC 32 at paras 39-41 : 1.

Did the irregularity pertain to a question which was central to the case against the accused? 2. What influence could the irregularity—or the cumulative effect of several irregularities—have had on the verdict, and how severe could any detrimental effects have been for the accused’s case? 3. Was it a trial by jury, for whom some irregularities can have a psychological effect, or by a judge sitting alone? 4. Was the irregularity remedied, in full or in part, at the trial? 5.

The focus should be on the effect of the irregularity on the fairness of the trial and the appearance of unfairness, not on whether the irregularity was accidental or intentional. 6. What was the attitude of defence counsel if and when he was confronted with the irregularity (for example, if he failed to object to the irregularity despite having the opportunity to do so)? [citations omitted] The Alleged Irregularities [ 8 ] The Crown’s opening address foreshadowed that certain evidence would be given by one of the witnesses.

An objection was made to the witness’ testimony and before a ruling could be made the Crown chose not to adduce the evidence. The Crown and the Accused agreed that this irregularity could be addressed by way of a mid-trial instruction. The Crown and the Accused provided the Court with a joint proposal for the mid-trial instruction, which I accepted, as follows: The lawyers, as you have seen, have active roles in the trial. You have seen that they will do opening statements, make arguments, question witnesses, and make objections.

Remember that lawyers are not witnesses, and since it is your duty to decide the case solely on the evidence that you see or hear in the courtroom, you must not consider statements of the lawyers as evidence. Do not focus on what a lawyer has said either in an opening, or in questioning, when comparing it to the evidence that is actually before you. Your assessment of the case and the decision you make must be on the actual evidence that has come out.

[ 9 ] The Accused asserts that several further irregularities have taken place during the testimony of the Crown’s witnesses that cannot be cured by a mid-trial instruction. The allegedly improper evidence given by Crown witnesses was as follows: (

a) The Complainant’s mother testified that at some point there was a Restraining Order, and while not expressly stating that it was in effect against Mr. B, this could be inferred; (

b) Both the Complainant’s mother and sister testified that at points in time Mr. B was only permitted supervised parenting; (

c) The Complainant referred to “an incident with the police” that had an impact on parenting arrangements but gave no details; (

d) The Complainant referred to visits with Mr. B when she was at “Sheriff King”, without elaborating what Sheriff King is. I take judicial notice of the fact that Sheriff King is a short-stay shelter in Calgary for women and children fleeing domestic violence; and (

e) The Complainant’s mother suggested that Mr. B’s access to the Complainant and her sister, but not her brother, was suspended in 2007. [ 10 ] The Accused did not suggest that any of the improper evidence was deliberately elicited by counsel for the Crown nor did that appear to be the case to me. In each of these instances, the question put to the witness was proper, and not objected to. However, the allegedly improper evidence was volunteered by the witness in answering the question.

Some of this evidence was volunteered during examination-in-chief, and some was volunteered during cross-examination. [ 11 ] The Accused submits that the evidence given by the Crown witnesses was irrelevant to the charged offences and unnecessary to answer the questions posed by counsel for the Crown. The Accused submits that the evidence is highly prejudicial because it gives the impression that he was considered by the Court to be a physical threat to the Complainant and her siblings. Restraining Orders are known by the lay public to be issued by the Court to protect vulnerable people from their abusers.

Similarly, the fact that Mr B was only allowed supervised parenting at times suggests to a lay person that the Court considered him untrustworthy in the presence of his children. This is prejudicial with respect to the charges of assault and uttering threats. [ 12 ] The Accused further submits that the evidence, especially because it is fragmentary, could be interpreted by jurors as being indicative that Mr. B was recognized by the Court as being engaged in unspecified activities that required him to be separated from the Complainant and her sister but not her brother.

Given that the charges in the present case include sexual interference and sexual assault, the Accused is concerned that jurors may conclude that there are other improper sexual acts that occurred that are not the subject of the present charges. The Accused submits that jurors may conclude from the improper evidence that he is the kind of person who would commit the charged offences. [ 13 ] Evidence of the bad character of an accused is prejudicial and should be excluded unless it is otherwise relevant and probative: R v Chavez , 2019 ABCA 137 at paras 7-8 .

Groberman JA in R v Bhullar , 2011 BCCA 395 at para 27 explained why evidence of the bad character of an accused is a threat to the fairness of a trial: The main danger of evidence of bad character is not that a jury will jump directly from the premise that the accused committed a disreputable act in the past to the conclusion that he or she is likely to be guilty of the crime charged.

It is, rather, that the jury might, in considering an accused’s disreputable conduct, conclude that he is a bad person, and use that evaluation as a reason to dismiss an otherwise reasonable doubt as to his or her guilt. [ 14 ] The Crown concedes that the evidence about the Restraining Order is both irrelevant and prejudicial. The Crown submits that the balance of the allegedly improper evidence given by the Complainant and her sister is relevant and probative.

The evidence about supervised parenting time, the police incident, and the Sheriff King stay are necessary context and the only way that the Complainant and her sister, who were children at the relevant times, could make sense of the chronology of events. The Crown further submitted that Complainant’s mother’s comment about the suspension of Mr.

B’s parenting in 2007 and her comments about supervised parenting were relevant as they help establish the timeline of events. [ 15 ] I agree with the Crown that the evidence about the supervised parenting time, the police incident, and the Sheriff King stay is relevant and probative. To restrict the Complainant and her sister, who were both children at the time of the alleged events, from referring to these things in evidence is impractical and counter to the truth-seeking process.

Recalling these events was necessary to their process of determining the timeline of the events that are the subject of the charged offences. Given the Complainant and her sister’s inability to clearly remember the timing and order of events, their mother’s evidence which included references to changes in the parenting arrangements was necessary. As such, this evidence is relevant and probative, though it is also prejudicial. [ 16 ] I note that in cross-examination of the Complainant and her sister, the Accused asked questions about the existence of a Court ordered parenting

schedule and the timing of the parenting and visitation arrangements with their parents. The Accused did so to solicit evidence about the timeline of events, thereby acknowledging the relevance of such evidence. [ 17 ] The only piece of impugned evidence that is truly an irregularity is the evidence concerning the Restraining Order. The other evidence identified by the Accused is proper evidence that should be used only for the limited purpose of establishing a chronology.

The risk with this evidence is that, particularly combined with the improper evidence concerning the Restraining Order, it could be used as evidence of bad character. Given the risk of misuse of the evidence I have found to be relevant, for the purpose of the mistrial test in the following

section all the impugned evidence will be referred to as “irregularities.” Application of the Unfair Trial and Mistrial Test [ 18 ] The first question that must be asked when considering whether a trial is fair is whether the irregularities pertain to a question which is central to the case against the accused. LeBel J in Khan was careful to point out at para 75 that “a serious irregularity on a

peripheral point can have rendered the trial unfair in reality or in appearance.” [ 19 ] The irregularities in the present case are not central in the sense that they pertain to the facts that must be proved to make out the essential elements of the charged offences. With that said, the improper evidence adduced could be perceived by the jury as indicative of the bad character of the Accused and indicative of a propensity to commit the type of acts with which he is charged.

In my view, the irregularities in the present case are sufficiently central to the case against the Accused to satisfy the first part of the mistrial inquiry. [ 20 ] Second, I must consider the gravity of the irregularities: Khan , para 76 . This includes the cumulative effect of several irregularities: Khan , para 77 . The Accused submits that the irregularities identified in the present case are related and combine or “compound” to paint a negative picture of him that will be hard for the jury to ignore.

I agree with the Accused that the impugned evidence given by the Crown witnesses depicts him in a poor light and, if not remedied, threatens the fairness of the trial. [ 21 ] The third and fourth parts of the fairness inquiry in Khan are framed from the perspective of an appellate court reviewing steps taken by a trial court. The third part addresses the type of trial – judge alone or judge and jury – and the fourth part asks whether the trial judge attempted to remedy the irregularities. This makes them awkward to apply as a court of first instance considering a mistrial application.

From the perspective of a trial judge, what these aspects of the mistrial test appear to be getting at is whether “a well-instructed jury may have the capacity to overcome irregularities”: Khan , para 78 . [ 22 ] The Accused submits that a mid-trial instruction cannot address the irregularities in the present case because of the complexity of the issues raised.

The Accused submits that to address the unfairness arising from the improper evidence in the present case, a mid-trial instruction would have to explain aspects of family law and the evidential and practical constraints that exist in family and urgent chambers. This, the Accused maintains, is beyond the capability of lay jurors to understand. [ 23 ] We should not be so quick to assume that a jury cannot understand the basic points of family law and practice required to disregard the improper evidence adduced in this case.

Justice Moldaver, writing for the majority in R v Barton , 2019 SCC 33 at para 177 expressed “strong faith in the institution of the jury and our firmly held belief that juries perform their duties according to the law and the instructions that they are given.” He went on to say that “[t]his is not a form of blind faith; rather, it is a reflection of the well- earned trust and confidence that has been built up over centuries of experience in courtrooms throughout the Commonwealth.” [ 24 ] After the impugned evidence was heard and after counsel for the Accused advised me that an application for a mistrial would be made but before I heard the application, a juror came forward seeking to be excused from the jury.

He said that he was engaged in a high conflict family law matter and felt that he could not be impartial. He also said that the subject matter of the case, given his personal circumstances, was not good for his mental health. I excused the juror. The Accused submits that this juror’s request to be excused indicates that the remaining jurors are incapable of dealing with the evidence concerning the family law issues in this case. I disagree.

The juror who requested to be excused did so for reasons personal to him; his inability to continue as a juror has no bearing on the ability of the remaining jurors to continue whatsoever. [ 25 ] I am satisfied that an appropriate mid-trial instruction can be crafted to direct the jury to disregard the improper evidence. The questions of family law and practice that must be addressed are straightforward and not beyond the understanding of lay jurors. Jurors are regularly charged on the standard of proof in criminal cases and trusted to understand and apply the law as instructed.

I see no difficulty in explaining the analogous concepts that exist in the family law context and why the jury should disregard mention of the granting of a Restraining Order. [ 26 ] I am also satisfied that the jury can follow instructions to limit their use of the relevant but prejudicial evidence that goes to the Accused’s character. Charron J, writing for the majority in R v Griffin , 2009 SCC 28 at para 73 noted “in many situations – for example, when dealing with similar fact evidence or prior inconsistent statements – the jury is permitted to hear and use evidence relevant to one issue, but not to another.

All that is required in each case is a clear direction to the jury indicating the permissible and impermissible uses to which the evidence may and may not be put.” [ 27 ] The fifth part of the Khan fairness analysis instructs the Court to focus on the issue of fairness not whether the irregularity was intentional or inadvertent. Though the irregularities in the present case were unintentional, I have taken them seriously and focussed on the issue of fairness throughout. [ 28 ] The sixth and last question LeBel J asks in Khan focuses on the conduct of defence counsel in response to the irregularities.

Counsel for the Accused has been diligent in rising to object to evidence, including on one occasion even before a witness was called (although that objection related to facts different than the facts in the evidence now being impugned). The evidence in issue on this application was not responsive to the Crown’s and the Accused’s questions; rather, the evidence was volunteered by the witnesses in addition to or instead of responding to the questions asked. Counsel for the Accused could not have anticipated the evidence given from the questions asked.

This put counsel for the Accused in the unenviable position of objecting after the evidence had been given. Counsel for the Accused cannot be blamed for the improper evidence being adduced. [ 29 ] Though there have been irregularities in this trial that are prejudicial to the Accused, I am not satisfied that a mistrial is the appropriate remedy. Members of the jury must be assumed to be capable of taking instruction and understanding the basic points of family law and practice necessary to disregard the improper evidence and, to the extent that the evidence is not improper, put it to appropriate use.

The Mid-Trial Instruction [ 30 ] The Crown proposed a mid-trial instruction to address the irregularities. The Accused was given an opportunity to comment on the Crown’s proposed mid-trial instruction but declined to do so given his position that a mid-trial instruction was not an adequate remedy. I accepted the general thrust of the Crown’s proposed mid-trial instruction, subject to several modifications. When I gave my

oral reasons, I provided counsel for the Accused and the Crown with my modified version of the Crown’s proposed mid-trial instruction. [ 31 ] Following my oral ruling on the mistrial application, the Accused requested, and I granted, an opportunity to provide comments on the mid-trial instruction. I accepted the revisions to the mid-trial instruction proposed by the Accused. The resulting mid- trial instruction that was given to the jury is as follows: You have heard evidence of a Restraining Order, a parenting schedule, supervised and unsupervised visitation, and an instance where police were present.

Courts grant orders for many different reasons. You are not to speculate as to the reasons for the orders or to make any inference from them. Often Courts grant Restraining Orders on the basis of only the applicant’s evidence, this evidence may not have been tested in cross-examination, and the responding party may not have had an opportunity to put forward evidence. Restraining Orders may be varied or revoked if the Court later receives more evidence. Just because a Restraining Order is granted does not mean that the person who was restrained did anything criminal or anything wrong whatsoever.

The threshold for granting orders in family law proceedings is different and lower than that required by criminal law. No inference should be made about anything to do with the Restraining Order or the parenting

schedule and parenting arrangements. To be clear, you are not to infer from the existence of a Restraining Order, a parenting

schedule (whether by agreement or direction of the Court), or that there may have been supervised and unsupervised visits (whether by agreement or direction of the Court) that either the mother or the father are good or bad parents. You are not to infer the reasoning for any of these orders or situations nor are you to infer the reason they began or ended. Evidence of the parenting

schedule and of the supervised and unsupervised visits, may be relevant to assessing the timeline of the alleged events, and in that regard, may assist you in assessing the credibility and reliability of various witnesses. Evidence of an instance that police were present is only evidence that the police may have been present; it is not evidence that anyone called the police, and it is not evidence that anyone, including the Accused, did anything wrong.

You are not to infer anything from the fact that the Complainant remembered that at some point police were present. [ 32 ] The mid-trial instruction does not address the Complainant’s reference to Sheriff King as, in my view, it is an obscure reference that means nothing to most people. I concluded that directing jurors’ attention to the evidence about Sheriff King and explaining that it is a shelter for women and children fleeing domestic violence would do more harm to trial fairness than omitting mention of it. Conclusion [ 33 ] The application for a mistrial is dismissed.

Heard on the 13 th day of September, 2023. Dated at the City of Calgary, Alberta this 14th day of September, 2023. Colin C.J. Feasby J.C.K.B.A. Appearances: Samina Dhalla for the Crown Elena Ryland and Mateya Selders (Student-at-Law) for the Accused