This is a summary of the reasons for the decision on a mistrial application that Defence counsel had submitted only days before the court would begin hearing sentencing submissions regarding the accused’s conviction of killing, maiming or injuring two dogs contrary to section 445.1(1)(a) of the criminal code. The two dogs, Tyler and Sophie, belonged to the accused’s former common law partner.
Trial details can be found here.
The Defence argued for a mistrial on the basis that there was insufficient access to the Crown’s expert witnesses prior to trial and that one of them was not impartial.
At trial, the Crown called two expert witnesses. The defence had conceded that their evidence was admissible under the two-step test in White Burgess Langill Inman v Abbott and Haliburton Co. The judge qualified both as expert witnesses: both in veterinary medicine, and one in veterinary forensics.
The judge noted that the evidence of the two experts were key pieces. Both contributed their opinion of what happened to the two dogs, including what caused their deaths but more explicitly that Tyler had died from blunt force trauma to his abdominal area which had caused bruising that could be seen in x-rays.
The defence argued that the lack of access to the expert witnesses impaired their ability to make full answer and defense (citing R v T(LA)). Specifically, the defence stated that there was inconsistency between one of the expert witnesses and one of the other witnesses. Had this been known about in advance, they would have cross-examined on that point. Defence counsel also argued that one of the expert witnesses was not impartial because they had previously seen emails from the accused’s former partner accusing him of killing the dogs.
The judge, citing R v Anderson, noted that a mistrial should only be granted in the clearest of cases. It was also noted that they found the other witness not credible about the dogs injuries and the expert witness credible on that point. This discrepancy had been addressed at trial. The judge found that a mistrial was not warranted based on this argument.
Further, the judge noted that both experts understood that they were to give fair, objective, and nonpartisan evidence and that the witness gave evidence about what the cause of death was: not who caused the death. The judge also found this was an insufficient reason for a mistrial.
The application for mistrial was dismissed.