ICBC Injury Claims, Video Surveillance and Mistrials
Reasons for judgment were released today by the BC Supreme Court ordering a mistrial following a trial by jury.
In today’s case (Oberreiter v. Akmali) the Plaintiff sued for injuries after she was struck by a vehicle while riding her bicycle in North Vancouver in 2004. Fault was not at issue, rather the trial focused solely on quantum of damages (value of the ICBC Injury Claim). Following trial the jury awarded the Plaintiff approximately $118,000 in damages. Prior to having the judgement entered the Plaintiff applied for a mistrial.
The key facts giving rise to the application for a mistrial are as follows:
After the trial was completed and the jury had been discharged, the plaintiff’s counsel discovered that the DVD contained approximately ten minutes of video which had not been shown to the jury. Through an unintentional error in editing, the DVD which was marked as an exhibit contained images which had not been shown to the jury; had not been seen by counsel or myself; and had not been admitted into evidence.
 The issue is whether the plaintiff is entitled to a mistrial because material not admitted into evidence was inadvertently included in an exhibit available to they jury during its deliberations.
In granting the mistrial, Mr. Justice Kelleher of the BC Supreme Court gave the following reasons:
 Where an irregularity such as the inadvertent inclusion of non-admitted material in exhibits left with the jury occurs, it is usually identified during the course of the trial. When that occurs, the court must consider all possible actions to remedy potential prejudice before ordering a mistrial. It may be that such an irregularity could be corrected with an instruction to the jury: seeGemmell v. Reddicopp, 2005 BCCA 628, 48 B.C.L.R. (4th) 349.
 Where the irregularity cannot be cured and the trial judge is satisfied that it may have a prejudicial effect impacting the result of the trial, a mistrial is the appropriate remedy: see de Araujo v. Read, 2004 BCCA 267, 29 B.C.L.R. (4th) 84. In that case, Mr. Justice Thackray observed at para. 68: “…a new trial may be ordered where trial irregularities may have influenced the verdict or award of the jury… “.
 Here, of course, there was no opportunity to correct the irregularity. Neither of the parties was aware of the inadvertent inclusion of material not admitted as evidence in the exhibit until the trial had ended and the jury had been discharged.
 It may be that the irregularity and any resulting prejudice could have been corrected easily if it had been noticed before the jury’s deliberations had come to an end. Perhaps the jury could have been instructed not to have regard to the footage.
 It is not known what the jury viewed. What is certain is that the jury was provided with material relevant to the case that was not evidence and was not led in court. This raises concerns about trial fairness and potential prejudice to the plaintiff. An important factual issue in the trial was the extent and severity of the plaintiff’s injuries. Thus, the video surveillance footage is highly relevant and potentially prejudicial.
 Notwithstanding the general principles of respect for jury secrecy, there is jurisdiction to make some inquiries of a jury: see R. v. Pan, 2001 SCC 42, , 2 S.C.R. 344. However, I am not persuaded that asking the foreperson to appear in court and to advise the court whether the jury viewed the DVD is appropriate. Many weeks have passed since the trial. Recall of a juror for these purposes is impractical and of questionable reliability.
 It is clear that a trial judge has the power to order a mistrial if the judge concludes there is no other option to remedy an irregularity. After the jury has been discharged, I am satisfied there is nothing further that can be done by the court.
 Both parties are entitled to have the jury decide the case solely on the evidence properly admitted during the trial. That is fundamental to a fair trial. It is my duty as a trial judge to ensure that this is safeguarded. Here, it is accepted by both parties that there was extraneous material made available to the jury that was not evidence admitted during the trial. This material is relevant to the issues in the trial and is potentially prejudicial. Since this irregularity cannot be corrected I conclude it would be unjust and unfair to let the verdict stand.
 A mistrial is appropriate where necessary to ensure that justice is done between the parties: see de Araujo v. Read. The plaintiff’s application for a mistrial is allowed.