Prejudicial Closing Arguments and the Law in BC

Reasons for judgement were released today dismissing a Plaintiff’s appeal of an award of $0 as a result of a BC motor vehicle accident.
The Plaintiff was allegedly injured in a rear end accident.  He sued claiming on-going consequences from a closed head injury and a whiplash type of soft tissue injury to his neck and back.   After a 5 week jury trial in 2007 the jury found the other motorist at fault but awarded $0 as they found that this collision did not cause any injury to the Plaintiff.
The Plaintiff appealed for various reasons including a claim that the defence lawyer made ‘improper prejudicial statements‘ in his closing argument to the jury.
The BC Court of Appeal Dismissed the case finding that while some of the statements ‘may have been cause for concern (plaintiff’s counsel) took no exception and did not ask the judge to provide any direction to the jury in respect of any aspect of the defence address.’ In dismissing the appeal the Court summarized the law as follows:

[23]            This Court will rarely intervene in a civil case where complaints in the nature of those raised for the first time here were not raised at trial.  In Brophy v. Hutchinson, 2003 BCCA 21, 9 B.C.L.R. (4th) 46, the Chief Justice explained:

[52]  In other words, the trial judge is in the best position to observe the effect of counsel’s statements on the jurors, and to fashion an appropriate remedy for any transgressions.  Where no objection is taken, the assumption is that the effect of any transgression could not have been seriously misleading or unfair and there would be no reason for suspecting injustice.

[53]  It is, however, recognized that there may be exceptional circumstances which merit a new trial, despite a failure on the part of counsel to object to an address: Dale v. Toronto Railway (1915), 24 D.L.R. 413 (Ont. C.A.).  In R. v. Jacquard, [1997] 1 S.C.R. 314 (S.C.C.), the court declined to adopt a strict rule that the failure to object to a jury charge invariably waives the right of appeal.  Lamer, C.J.C. noted: “Such a rule might also unequivocally prejudice an accused’s right of appeal in cases where counsel is inexperienced with jury trials”.  [Emphasis of Finch C.J.B.C.]

[54]  In Basra v. Gill (1994), 99 B.C.L.R. (2d) 9 (B.C.C.A.) the court recognized that where there is a “substantial wrong or miscarriage of justice” a new trial may be required, even in the absence of an objection.

[55]  In my opinion, failure of counsel to make a timely objection to irregular or improper proceedings at trial is and must remain, an important consideration in determining whether there has been a miscarriage of justice.  That consideration, however, is to be weighed against the nature and character of the irregularity or impropriety complained of.

[24]            The nature of the statements now complained of does not raise this to an exceptional case that would justify ordering a new trial.  The judge, who was in the best position to observe the effect of what defence counsel said, made no comment at all.  (the Plaintiff’s) counsel said nothing other than what he said in reply.  If he had sought it, some instruction might have been given.  It was apparently thought to be unnecessary. 

This case, and others like it, go to show that it is difficult to succeed in an appeal when alleged improper conduct is not complained about when it occurs at the trial level.