"Cumulative Effect of Misstatements and Transgressions" Results in Jury Discharge
Reasons for judgement were released this week by the BC Supreme Court, Powell River Registry, discharging a jury prior to the conclusion of a personal injury trial.
In this week’s case (Vander Maeden v. Condon) the Defendant objected to a series of “misstatements and transgressions” following the Plaintiff’s final submissions to the Jury. The Plaintiff argued that there was no need to discharge the jury and proper instructions “could cure any defects in the trial“. Mr. Justice Gaul held that while some of the misstatements could have been dealt with by proper instructions, their “cumulative effect” was beyond remedy. In discharging the jury the Court provided the following reasons:
 In my view, the defendants’ application is well founded. Some of Mr. Vander Maeden’s counsel’s statements were of such a nature that they could have been addressed, if necessary, by directions from the court. Informing the jury that it was Mr. Vander Maeden who had asked for a jury trial; suggesting to the jury they should not consider “technical legal arguments”, advising the jury that the defendants had not sought to have their medical expert personally examine Mr. Vander Maeden; and referring to injuries unrelated to the accidents, would, in my view, fall into this category. However, in my respectful opinion, the cumulative effect of all of counsel for Mr. Vander Maeden’s transgressions made it pointless to attempt any corrective instructions or measures, for I do not believe there was anything that could have said that would have, with any degree of confidence, disabused the minds of the jury of the misstatements and misconduct…
 Counsel for Mr. Vander Maeden expressed his “hope” that proper instructions to the jury could cure any defects in the trial or prejudice to the defendants that were caused by his submissions. That hope was understandable, but in the circumstances it was in vain. Although I accept without hesitation that there was no malice or improper design on the part of Mr. Vander Maeden’s counsel, the cumulative effect of his misstatements and transgressions amounts, in my view, to misconduct.
 With great respect for each member of the jury, in my opinion their ability to fairly and impartially perform their role as the triers of fact was irreparably compromised by Mr. Vander Maeden’s counsel’s final submissions.
 In my view counsel for the defendants is correct when he submits the only means of salvaging the trial is to discharge the jury and have the proceeding continue as a judge alone trial. In my view a just, effective and efficient resolution to the situation is for the jury to be discharged, for Mr. Vander Maeden’s counsel to make additional submissions on the issues at trial if he believes they are necessary and then for counsel for the defendants to make his final submissions.