HIS MAJESTY THE KING CROWN - v. –, 2023 SKKB 202

KING ’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 202 Date: 2023 09 22 Docket: CRM-RG-00367-2021 Judicial Centre: Regina BETWEEN: HIS MAJESTY THE KING CROWN - and – CHRISTOPHER JUSTICE MAPLE ACCUSED Counsel: Aly Sparks for the Crown Lara Bonokoski for the accused FIAT ROBERTSON J.

September 22, 202 3 Contents Paragraphs INTRODUCTION .. 1-3 BACKGROUND .. 4-16 Charge . 4 Trial 5-8 Defence counsel raises ethical issue . 9-11 Mistrial application . 12-13 Campbell Affidavit . 14 Agreed Statement of Facts . 15 Chronology of events . 16 ISSUE .. 17 POSITION OF THE PARTIES . 18 ANALYSIS . 20-52 Requirement for leave to withdraw .. 21-23 Canadian Charter of Rights and Freedoms . 24 Test for mistrial 25-30 Relevant circumstances . 31-32

Has the right to a fair trial been compromised? . 33-45 Does the precipitating event relate to a central or peripheral issue? Could it affect the verdict? 46-47 Is there defence or Crown conduct that is a factor? . 48 Are there other corrective measures short of a declaration of mistrial that could adequately remedy the problem? . 49-52 Decision . 53-56 INTRODUCTION [ 1 ] This decision addresses an application by the accused for mistrial.

The argument for mistrial is that defence counsel, after all evidence was heard and both sides had closed their cases, remembered that he had previously represented one of the Crown witnesses on a charge involving the complainant. He had completely forgotten that until reminded by another Legal Aid lawyer on the day scheduled for closing argument. [ 2 ] For the reasons which follow, the application is dismissed. [ 3 ] Since the defence lawyer had no recollection during trial, that past involvement could not have affected his conduct of the trial.

The potential “new evidence” about the earlier criminal charge and peace bond is insufficient reason to declare a mistrial. Subject to any defence application to re-open the evidentiary part of the trial, the trial will now proceed to closing argument. BACKGROUND Charge [ 4 ] Christopher Justice Maple [Accused] is charged by indictment: THAT HE, the said Christopher Justice Maple on or about the 22 nd day of June, A.D. 2021 at or near Standing Buffalo First Nation, Saskatchewan, did attempt to murder Natalie Yuzicappi by slashing her throat with a knife, contrary to section 239(1) (

b) of the Criminal Code . Trial [ 5 ] Trial was held in February, March and April 2023. [ 6 ] The Crown called eight witnesses at trial: • RCMP Cst. Adam Schriver; • RCMP Cst. Lauren Boucher; • Michael Schiffer, paramedic; • Ryan Redman, occupant of House 225; • RCMP Sgt. David McClarty, canine handler; • RCMP Cpl.

Kevin Marion; • Natalie Yuzicappi, complainant and occupant of House 226; and • Vanessa Yuzicappi, daughter of Natalie and occupant of House 224. [ 7 ] The Crown closed its case on May 1, 2023. (Transcript, T659). [ 8 ] On May 2, 2023, defence counsel said he would not call any witnesses. (Transcript T660). Trial was then adjourned to May 5, 2023 for closing argument. Defence counsel raises ethical issue [ 9 ] On May 5, 2023, defence counsel said he could not proceed because of an ethical issue and requested an adjournment of the trial.

The request was granted and trial was adjourned to May 12, 2023. [ 10 ] When court resumed on May 12, 2023, the Crown explained that the ethical issue arose because defence counsel had previously represented one of the Crown witnesses, Ryan Redman, in a charge of assault against the complainant, Natalie Yuzicappi which was resolved by a peace bond on November 8, 2021. Defence counsel had forgotten about that until reminded by a colleague on May 5, 2023. (Transcript, at T675-676).

After some discussion, the trial was adjourned again to May 25, 2023 to allow Saskatchewan Legal Aid to find new counsel to represent the Accused.

[ 11 ] On May 25, Lara Bonokoski of Regina City Legal Aid appeared with Bruce Campbell of Regina Rural Legal Aid. Mr. Campbell was given leave to withdraw on the understanding that Saskatchewan Legal Aid would continue to represent the Accused with Ms. Bonokoski acting for the Accused on a proposed mistrial application. Mistrial application [ 12 ] The mistrial application was scheduled for September 21, 2023.

The court ordered filing deadlines of August 1, 2023 for the written application and August 31, 2023 for exchange of any materials by both parties. [ 13 ] On September 1, 2023, the defence filed a notice of application for a mistrial with supporting affidavit of Bruce Campbell sworn August 2, 2023 [Campbell Affidavit]. Campbell Affidavit [ 14 ] The accused filed the Campbell Affidavit who was defence counsel at trial. It lacks critical detail. For example, it omits the date of events, including in para. 9 when Mr. Campbell remembered his previous representation of Mr. Redman.

The affidavit may also contain errors. For example, Mr. Campbell says in para. 2 that “In February of 2021 I started acting on behalf of the appellant, Christopher Justice Maple, after his arrest and his time in custody.” Leaving aside the description of the Accused as “appellant” rather than accused, the offence occurred on June 22, 2021. So how could Mr. Campbell be acting for the Accused on this charge four months earlier in February 2021? These deficiencies are surprising, given that Mr.

Campbell had almost three months between the scheduling of the mistrial application and his swearing of his affidavit and that the mistrial application relies upon the affidavit. Agreed Statement of Facts [ 15 ] On August 31, 2023, the Crown filed an agreed statement of facts with the following admitted as fact: (

a) On June 22, 2021 an information bearing the number 90432536 was sworn alleging that the Accused had attempted to murder Natalie Yuzicappi by slashing her throat with a knife. The Accused made his first appearance on this charge on June 24, 2021. (

b) From the date of his first appearance on June 24, 2021 through to the date of his withdrawal on May 25, 2023 Bruce Campbell of the Regina Rural Legal Aid Office has been the solicitor for the Accused. (

c) A preliminary inquiry was heard in the Provincial Court of Saskatchewan in the judicial centre of Fort Qu’Appelle on November 30, 2021 and December 1, 2021. Ryan Redman was a witness at the preliminary inquiry. (

d) Mr. Campbell first became aware of the conflict caused by his prior representation of Ryan Redman on the morning of May 5, 2023. Chronology of events [ 16 ] A transcript of the trial was produced at the request of the court. From the court file, including the agreed statement of facts, transcript and Campbell Affidavit, I construct the following chronology of relevant events. 2019 July Ryan Redman charged with assault on Natalie Yuzicappi – Mr. Redman fails to attend court and a bench warrant is issued. 2021 June 22 The Accused charged with attempted murder of Natalie Yuzicappi.

August Ryan Redman appears in Provincial Court in Fort Qu’Appelle. David Andrews appears as his lawyer, adjourning charge to November 8, 2021 for trial. November 8 Bruce Campbell appears in Provincial Court with Ryan Redman agreeing to peace bond. Assault charge stayed or withdrawn. Legal Aid file closed. November 30 & Preliminary inquiry in Provincial Court for the December 1 Accused. Ryan Redman testified and was cross-examined by Bruce Campbell. 2023 February 21 Trial of the Accused commences with arraignment. February 22 Crown applications for remote testimony and voir dire to qualify expert witness.

March 20 & 24 Voir dire on defence application to exclude evidence. March 26 Robertson J. fiat granting Crown applications to qualify expert witnesses and to allow remote testimony. April 13 Robertson J. fiat dismissing defence application to exclude evidence.

April 24-28 Trial in King’s Bench Court. Ryan Redman testified and was cross-examined. May 1 Trial resumes – Crown closes case. May 2 Defence calls no evidence; adjourned to May 5 for closing argument. May 5 Bruce Campbell reminded by colleague of prior representation of Ryan Redman; appears in King’s Bench Courtseeking adjournment to consider position; adjourned to May 12. May 12 Crown discloses nature of conflict; Bruce Campbell says he is withdrawing; adjourned to May 25.

May 25 Bruce Campbell given leave to withdraw after assurance that Saskatchewan Legal Aid will continue to representthe Accused; adjourned to September 21 for mistrial application. August 14 Death of Natalie Yuzicappi September 21 Argument on defence application for mistrial. ISSUE [17] Should a mistrial be declared because defence counsel had previously represented a Crown witness, RyanElwood Redman?

POSITION OF THE PARTIES [18] The Accused argued that “there has been a fatal wounding of the trial process, such that his right to a fair trialhas been irreparably compromised due [to] him being prejudiced in making full answer and defense, as a result of his counsel’s inabilityto continue to represent him.” (Notice of application for a mistrial, page 2) [19] The Crown argued that a mistrial is not required and the trial should continue. It is open to the accused to applyto re-open its case to call evidence or apply to recall Crown witnesses, but those applications would have to be considered on their merits.

ANALYSIS [20] I will briefly review the requirements for leave to withdraw as counsel during a trial before addressing the issueof whether to declare a mistrial. Requirement for leave to withdraw [21] Bruce Campbell was given leave to withdraw as defence counsel on the assurance that Saskatchewan Legal Aidwould continue to provide representation to the Accused. [22] Mr. Campbell took the position that he was entitled to withdraw without leave of the court. (Transcript, T696,lines 34-35). I disagreed then and now with the idea that counsel has a unilateral right to withdraw during a trial.

The court can requirecounsel to continue to appear.

In this case, I declined to grant leave until assured that the accused had another lawyer. (Transcript, T698,lines 11-20). [23] At the same time, the court will not look behind counsel’s statement that they are ethically obliged to withdraw.In R v Myers, 2015 SKQB 59 at paras 28-29, 470 Sask R 178 [Myers], Barrington-Foote J. (as he then was) wrote: [28] … As noted by Rothstein J. in R v Cunningham, 2010 SCC 10, [2010] 1 SCR 331, where counsel seeks to withdraw: 48… in either the case of ethical reasons or non-payment of fees, the court must accept counsel's answer at face value and not enquirefurther so as to avoid trenching on potential issues of solicitor-client privilege. 49 If withdrawal is sought for an ethical reason, then the court must grant withdrawal (see C. (D.D.) [R v C. (D.D.) (1996), 1996ABCA 303 , 110 CCC (3d) 323], at p. 328, and Deschamps [R v Deschamps, 2003 MBCA 116, 177 Man R (2d) 301], at para.23).

Where an ethical issue has arisen in the relationship, counsel may be required to withdraw in order to comply with his or herprofessional obligations. It would be inappropriate for a court to require counsel to continue to act when to do so would put him or her inviolation of professional responsibilities. [29] I must accordingly accept the statement by defence counsel that they must withdraw, and cannot enquire further as to those reasons.… Canadian Charter of Rights and Freedoms [24] The defence application relies upon s. 7, 11(

d) and 24(1) of the Canadian Charter of Rights and Freedoms,which are reproduced below: Life, liberty and security of person 7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice. ...

Proceedings in criminal and penal matters 11 Any person charged with an offence has the right … (

d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; … Enforcement of guaranteed rights and freedoms 24

(1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. Test for mistrial [ 25 ] The applicant for a mistrial must show significant, irreparable prejudice to a fair trial that cannot be addressed through some other remedy.

The prejudice must be so great that, if the trial continued, a miscarriage of justice would result. [ 26 ] In R v Dueck , 2011 SKCA 45 at para 30 , 88 CR (6th) 150 [ Dueck ] , Richards J.A. (as he then was) writing for the Court of Appeal, commented on the power to grant a mistrial, including that a mistrial should only be declared in the clearest of cases where there is no other remedy. [30] … The power to grant a mistrial is an inherent discretionary power of a trial judge.

It can, of course, be exercised after inadmissible evidence is disclosed in circumstances where the disclosure could cause material prejudice to the right of a fair trial. However, a mistrial should be declared only in the “clearest of cases” where there has been a “fatal wounding of the trial process” which cannot otherwise be remedied. See: R. v. Arabia , 2008 ONCA 565 , 235 C.C.C. (3d) 354 at para. 52 ; R. v. Pires , 2004 BCCA 33 , 183 C.C.C. (3d) 232 at para. 55 ; R. v.

Khan , 2001 SCC 86 , [2001] 3 S.C.R. 823 at para. 32 . [ 27 ] In R v Charles , 2015 SKQB 381 at paras 30-33 , Danyliuk J. referred to Dueck and other decisions in identifying relevant principles and factors to consider in deciding an application a mistrial: [33] From a reading of the case law on mistrials, the following principles emerge: (

a) There is no “one size fits all” test. The particular circumstances of each case must be carefully assessed by the trial judge. (

b) An accused is entitled to a fair trial, not a perfect trial: R v Khan , 2001 SCC 86 at para 72 , [2001] 3 SCR 823 . (

c) In Khan at para 73 , the question is asked as to whether “a well-informed, reasonable person considering the whole of the circumstances … have perceived the trial as being unfair or as appearing to be so.” (

d) Does the precipitating event relate to a central or peripheral issue? Could it affect the verdict? (

e) Is there any defence or Crown conduct that is a factor? (

f) What corrective measures are available that can adequately remedy the problem? Would a mid-trial instruction assist? (g) “What matters most is the effect of the irregularity on the fairness of the trial and the appearance of fairness”: Khan at para 84 . (

h) A mistrial should only be granted as a last resort, in the clearest of cases, and where no other remedy is available: R v Toutissani , 2007 ONCA 773 at para 9 . [ 28 ] This list was applied by McMurtry J. in R v Wilson , 2017 SKQB 168 at para 4 , and by Crooks J. in R v A.S ., 2022 SKQB 60 at para 11 . [ 29 ] In van Ooyen v Carruthers , 2018 SKQB 73 at para 11 , Danyliuk J. repeated this list and at para. 12 stated “These basic guiding principles overlay mistrial applications, be they in the criminal, civil, or family context.” [ 30 ] I accept and will also apply this list in considering whether to grant the defence application for mistrial.

Relevant circumstances [ 31 ] The trial is near completion. The next step would be closing argument. Although both sides have closed their evidence, it is open to the accused to apply to recall witnesses or call defence witnesses. [ 32 ] This is a trial by judge-alone. That is relevant to concerns over prejudice and timing, which will be of greater concern in a jury trial. Has the right to a fair trial been compromised? [ 33 ] There is no suggestion that the Accused was not adequately defended at trial.

Bruce Campbell is one of the most experienced lawyers employed by Saskatchewan Legal Aid, with 40 years practice in criminal defence. [ 34 ] While Mr. Campbell now suggests he might have done things differently, there was a complete defence. The

defence opposed Crown pre-trial applications and brought its own pre-trial application to exclude evidence. The trial took place over several days and was adjourned to locate a Crown witness who had failed to appear. Although the Crown was prepared to close its case without her testimony (Transcript: T583, lines 19-20), the defence maintained her testimony was vital for the defence (Transcript, T583, lines 19-29). That witness, Vanessa Yuzicappi, was located and testified.

The Crown witnesses were cross-examined. [ 35 ] Recognizing that the Crown has the onus of proving the offence, the working theory of the defence during the trial appeared to be that Natalie Yuzicappi had falsely accused the Accused and that the wounds were self-inflicted. (Transcript: T530, lines 32-40). [ 36 ] The defence application does not explain how the defence was prejudiced, except to suggest that Mr. Campbell could not cross-examine Mr. Redman. Mr. Campbell was unable to pursue an investigation into Ms. Yuzicappi’s allegations against Mr.

Redman, or make a third party application to have the file containing the assault allegations disclosed to him, due to Mr. Campbell acting as counsel for Mr. Redman on the assault charge. Ethically, Mr. Campbell could not cross-examine his former client on Ms. Yuzicappi’s allegations that Mr. Redman assaulted her, or his decision to enter into a recognizance under

section 810 of the Criminal Code . (Maple notice of application for a mistrial: Facts, 1, g.) [ 37 ] But Mr. Campbell did cross-examine Mr. Redman at both the preliminary hearing and at trial. [ 38 ] The evidentiary portion of the trial was completed before Mr. Campbell was reminded of his prior representation of Ryan Redman. Until then, Mr. Campbell had no memory of that prior representation, so any knowledge gained from that representation could not have affected his conduct of the defence. Ms. Sparks: It's my understanding that Mr.

Campbell was unaware, as was the Crown, of course, of this conflict, such as it may be, throughout the entirety of this trial up until last Friday morning [May 5, 2023]. And so it’s, certainly, impacted in no fashion of the evidence that has been called. (Transcript: T676, lines 30-33) . . . The Court: When you say “discovered it”, did you just forget your previous involvement with Mr. Redman? Mr. Campbell: Well, again, I can give you a little more history. It is one of those things that slipped through. When Mr. Redman was charged, I was on holidays. The lawyer covering set up the trial date.

And that trial date happened to be November. I did attend. The Crown offered a peace bond and we simply agreed. Nothing raised – any concerns at that time. We – Chris Maple had been in custody and was released. A prelim was to be set a little ways down the road. So, in that sense, its – and again, if – if you would, it’s hard to explain. For instance, I was in Fort [Qu’Appelle] today. I probably dealt with between 15 and 20 files today. Not, obviously, completing them, but, you know? So there’s a number of things go on on any given day.

So as I was talking with a colleague at the office, it was her who recalled we had a file for Mr. Redman. And we had all sorts of information that could’ve been very useful to Mr. Maple. And again, I couldn’t -- and it would not be appropriate for me to have used that information. It – it – in the proper course of things, we shouldn’t have represented Mr. Redman back in October or when he first was brought before the courts in August, I think, of 2021. But we did. And here we are now. (Transcript: T701, lines 6-24) . . . 9.

When discussing this file in 2023 and on my preparations in it a colleague recalled that we had Mr. Redman as a client, and we discovered that he was charged with assaulting Natalie Yuzicappi. (Campbell Affidavit at para. 9) . . . e. Following the close of the Crown’s case, and prior to argument, Mr. Campbell was alerted to the fact that the Regina Rural Legal Aid office has also represented Mr. Redman in August, 2021, on a charge that Mr. Redman assaulted Ms. Yuzicappi. … Mr. Redman’s trail was set for November 8, 2021, but the Crown proposed a resolution that Mr. Redman enter into a recognizance under

Section 810 of the Criminal Code . (Maple notice of application for a mistrial: Facts, para. 1, e.) [ 39 ] Mr. Maple argues that the defence might have done things differently had it known of the 2019 charge and 2021 peace bond involving Mr. Redman and Natalie Yuzicappi, suggesting this case is “analogous” to Myers , where a mistrial was declared. 2. …The information that came to light about Mr. Redman’s charges against Ms. Yuzicappi may have significant impact on defense counsel’s strategy for the trial, and the evidence Mr. Maple seeks to have heard at trial.

The facts in this case are analogous to the situation in R v. Myers , 2015 SKQB 59 , where defense counsel applied for a mistrial, or in the alternative, indicated they would withdraw due to ethical reasons. …

(Maple notice of application for a mistrial) [40] In Myers, Barrington-Foote J. declared a mistrial in a jury trial. While the decision is instructive, I do not agreethat it is “analogous” to this case. There are significant differences on the facts and findings. [41] In Myers, during the testimony of the last Crown witness, it was discovered that a page of the police officer’snotes had been inadvertently omitted from Crown disclosure. That page recorded a telephone conversation in which the sister of themurder victim told police that another person had threatened to kill the victim.

Barrington-Foote J. at para. 19 ruled that there was abreach of the Crown duty to disclose and at para. 25 that the accused was prejudiced by the failure to disclose the missing page. ButBarrington-Foote J. stated at para. 28 that “The determining factor in the choice of remedy, however, is the fact that defence counselhave advised they are unable for ethical reasons to continue representing Mr. Myers.” So it seems apparent that the mistrial waspremised on the inability to continue the jury trial without a defence counsel.

Unlike a judge-alone trial, adjourning for more than a fewdays is rarely an option in a jury trial. [42] The Campbell Affidavit at para. 12 states: “In my opinion the allegations that Mr. Redman has actuallyassaulted or at least put Mississippi [sic] in fear of personal injury would have a significant impact on this trial.” In as much as thedefence might wish to put Ryan Redman forward as an alternate perpetrator, based on prior conflict with Natalie Yuzicappi establishedby the peace bond, there is already evidence of their prior relationship and conflict. Mr.

Redman testified in direct examination that heand Natalie Yuzicappi had a prior romantic relationship. (Transcript: T371). Natalie Yuzicappi, in cross-examination, said that RyanRedman had been a drug user, suffered from mental illness, had stabbed her brother and she had been scared of him in the past.(Transcript: T524, lines 27-39). But he – his mind isn’t there. He nailed up my whole house in Regina, boarded the windows up, locked me in, slept with knives, he sleptwith chains. He literally wasn’t in his right mind. I got scared of him. He had – he said he had people locked up downstairs.

I had tophone the police, and when I phoned the police, they checked downstairs. There was nobody downstairs. … (Transcript: T524, lines 35-39) [43] So if the defence wanted to suggest Ryan Redman as a potential assailant based on a prior incident whichshowed Natalie Yuzicappi had once been in fear of him, that was already in evidence. [44] There will be a change of counsel because of Mr. Campbell’s withdrawal. Change of counsel during trial willnot, without something more, support a mistrial.

In R v Ramos, 2020 MBCA 111 at para 141, 409 CCC (3d) 239, the accused dischargedhis lawyer after the Crown closed his case. The accused then moved for a mistrial or, alternatively, recalling the complainant and hermother for cross-examination, alleging ineffective assistance of discharged counsel. The application was dismissed by the trial judge.The Manitoba Court of Appeal upheld the trial judge’s decision. Mainella J.A. in the majority decision of the Manitoba Court of Appealwrote: Application of the Law [139] There is no basis to interfere with the trial judge’s refusal to grant a mistrial.

I see no reversible error or resulting injustice. Therewas a lack of evidence of prejudice to the accused filed on the motion in relation to the claim of ineffective assistance of counsel; thesubmission was based on conjecture. Moreover, the accused conceded a mistrial was not a last resort in this case as he believed recallingthe complainant and her mother for cross-examination could have saved the trial. [140] I would also not interfere with the trial judge’s

summary dismissal of the request to recall the complainant and her mother forfurther cross-examination. This was not a case of a new disclosure coming to light after the complainant or her mother testified.

Nor isthere any suggestion, let alone evidence, that essential evidence from the complainant or her mother was not adduced or challenged bythe accused’s previous counsel due to incompetence. [141] The argument of the accused is based entirely on a hindsight analysis that a better job could have been done by a different lawyer.The difficulty with that submission is that, in our system of justice, when there is a change of counsel, the new counsel picks up the briefin the shape that it is in, not in the shape that he or she may hope it to be in; there is no right to start over.

It would have been highlydisruptive to the fairness of the trial for the two witnesses to have been recalled almost a year after they previously testified simplybecause the accused wanted a different lawyer to redo cross-examination in the speculative hope that his situation would improve.

Thereis nothing in the record to suggest that it was essential to do justice in the case for the two witnesses to be recalled for further cross-examination. [45] Although there is no suggestion of a Crown failure to disclose, I note the comment in R v Dixon, (SCC), [1998] 1 SCR 244 at para 38, to the effect that even in the case of Crown non-disclosure, the defence cannot complain if“defence counsel knew or ought to have known”, which is the case here. 38 Whether a new trial should be ordered on the basis that the Crown’s non-disclosure rendered the trial process unfair involves aprocess of weighing and balancing.

If defence counsel knew or ought to have known on the basis of other disclosures that the Crownthrough inadvertence had failed to disclose information yet remained passive as a result of a tactical decision or lack of due diligence itwould be difficult to accept a submission that the failure to disclose affected the fairness of the trial. See R. v. McAnespie, (SCC), [1993] 4 S.C.R. 501, at pp. 502-3. Does the precipitating event relate to a central or peripheral issue?

Could it affect the verdict? [46] The defence does not explain how the prior charge against Ryan Redman or peace bond could be expected toaffect the verdict. It is not the court’s role to speculate. [47] Mr. Redman’s evidence at trial was that his neighbour, Natalie Yuzicappi, came to his home in the middle of

the night seeking help. She told him her injuries were inflicted by the accused. Mr. Redman called 911 and provided first aid. Is there defence or Crown conduct that is a factor? [ 48 ] The issue arose from the failure of defence counsel to recall his prior involvement with Ryan Redman. Are there other corrective measures short of a declaration of mistrial that could adequately remedy the problem? [ 49 ] A mistrial is an extraordinary remedy.

It should only be granted in the clearest of cases where there is no alternative relief that could address the problem. [ 50 ] The defence did not propose any alternative remedies and instead on May 25, 2023 proposed a mistrial: (Transcript: T697, lines 2-3). The Crown identified the possibility of reopening for the purpose of questioning Ryan Redman or Natalie Yuzicappi as an option. (Transcript: T698, lines 1-3). The defence did not respond to this suggestion and instead again stated its intention to seek a mistrial. (Transcript: T700, lines 27-28).

After some discussion over dates, the trial was adjourned to September 21, 2023 for a mistrial application. (Transcript: T708, line 38). [ 51 ] In this case, there is obvious alternative relief available. Saskatchewan Legal Aid has undertaken to provide new counsel. It has had three months to do so. A full transcript of the trial has been prepared and was made available to defence counsel.

So new defence counsel should now be able to decide whether to proceed to closing or seek to re-open the evidentiary portion of the trial. [ 52 ] If, after reviewing the transcript, defence counsel wishes to apply to recall Crown witnesses or re-open the defence case to call defence witnesses, that application can be heard and decided. Otherwise, the trial will proceed to closing argument. Decision [ 53 ] Based upon my review of the relevant factors, I am fully satisfied that the application for mistrial should be dismissed.

The Accused has not established real and significant prejudice to his right to a fair trial. Even if he had, I am not satisfied the prejudice could not be remedied through an alternative remedy. [ 54 ] Any prejudice from the “discovery” of the prior criminal charge and peace bond is speculative.

And there are alternative remedies available, such as re-opening the evidentiary portion of the trial to enter certified copies of the information on the criminal charge and peace bond or recalling Ryan Redman for further cross-examination. (While not apparent what purpose that would serve, that question is best left to argument should there be an application to re-open the trial.) [ 55 ] The application for declaration of mistrial is dismissed. [ 56 ] A conference call with counsel and the Accused is scheduled for October 17, 2023 at 9:00 a.m. to discuss next steps and to

schedule dates for the continuation of this trial. J. D.N. ROBERTSON