Forsythe v. Tone 2018 ONSC 3598

Background

This case addressed a rather rare occurrence in family law – a mistrial. Mistrials occur when there is a fundamental error or serious irregularity in the conduct of a trial. If the irregularity prejudices one of the parties to such a degree that it would offend the administration of justice to continue, a mistrial will be called. When this happens, the parties have to start a trial anew.

In this case, the Applicant wife conversed with her counsel via email in the midst of her cross-examination by the respondent’s lawyer. She had been directed by the judge not to speak to anyone during this time. Her counsel originally lied, assuring the court twice that she had not been corresponding with her client during the break in cross-examination. The next day, before a voir dire on the issue was called, the lawyer called LawPro to retain counsel for herself. She confessed that she had communicated by email with her client and discussed evidence contrary to her ethical obligations as an officer of the court.

Analysis

Justice Akbarali analyzed whether a mistrial was the appropriate measure to take in this case. She cited van Ooyen v Carruthers, in which the judge said “A mistrial should only be declared in the clearest of cases where there has been a fatal wounding of the trial process or to the administration of justice which cannot otherwise be remedied.” She went onto point out that a mistrial should only be granted as a last resort and where no other remedy is available.

Based on this framework, Justice Akbarali assessed whether the damage created by the prohibited communications could be remedied some other way.

The applicant was expected to be the only witness in support of her claim, making her evidence critical to the resolution of the matter. It would touch on each triable issue. Given that a key component of a fair trial for the respondent is the ability to fairly cross-examine the applicant, she did not believe that they could continue the trial without prejudicing the respondent.

The respondent submitted that if the re-examination was closed off and the documentary evidence that was introduced on re-examination was expunged, he was prepared to proceed. The judge felt that this unfairly prejudiced the applicant, who was entitled to a proper re-examination. In these circumstances she would be denied this process through no fault of her own. Her lawyer did not blame her for the inappropriate communications, and while the judge told the applicant not to talk to anyone on the break, the applicant may not have known that this included her own lawyer.

Based on this analysis, Justice Akbarali could not find any means to continue the trial that could not prejudice one party or the other. As such, she declared a mistrial.

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