No Mistrial For “Inapropriate” Comments to Jury Where Corrective Instruction Will Do

Reasons for judgement were published today by the BC Supreme Court, Penticton Registry, denying a mistrial request based on inappropriate closing submissions to a jury.

In today’s case (Johal v. Johal) the Plaintiff was injured in a collision and sued for damages.  The court noted that throughout his closing submissions, plaintiff’s counsel made several references to the fact the defendants did not call a case. These included:

• The plaintiff stated, “It is noteworthy no witnesses were called to contradict the plaintiff’s case”, shortly after he stated the defendants were not obliged to call evidence.
• When referring to the plaintiff’s evidence about working at the fruit packing plant counsel referred to that fact that no witnesses from the packing house were called to contradict any of the plaintiff’s evidence.
• When referring to the plaintiff’s high school experience, counsel referred to the fact that the defendants did not call a single witness from the graduating class.
• When referring to his medical treatment and availability of medications, counsel for the plaintiff referred to the fact that one of the treating physicians, Dr. van de Vosse, was not called by the defendants to contradict the plaintiff’s testimony.

The Defendant sought a mistrial but the Court refused finding a strong corrective instruction can overcome any potential prejudice from the above.  In reaching this conclusion Madam Justice Devlin provided the following comments:

[12]         As stated earlier, a mistrial is a remedy of last resort. As noted by the Court in Jones at para. 30, “a corrective instruction is often appropriate and adequate to remedy an irregularity in a trial.” Having considered the entirety of plaintiff’s counsel’s comments, I am satisfied in this particular case, corrective measures, short of declaring a mistrial, are available to remedy the situation. In my charge I will instruct the jury as I did at the start of this trial, as to which party bears the burden of proof and remind them that there is no obligation on the defendants to call any evidence. While I am cognizant of the defendants’ concerns regarding any corrective instruction which may “magnify” the problem, I am satisfied that a clear and forceful instruction will address the problem without exacerbating it. A clear, limiting instruction to the jury will balance those two considerations adequately. Further, although plaintiff’s counsel’s comments are wanting for some propriety, they do not rise to the level of substantial wrong, nor does it bring with it a potential for a miscarriage of justice in this context. I am satisfied that I can craft my instructions in such a way to ensure the jury understands who bears the burden without rehashing the specifics of the plaintiff’s comments. I am confident that the jurors are capable of following instructions given by a judge…

16]         Accordingly, the application for a mistrial is dismissed.