Thursday, July 9, 2015

Prejudicial evidence in judge alone trial

In judge alone trials evidence or submissions on evidence that might well lead to a mistrial before a jury are far less likely to lead to a mistrial. So see today's decision in R. v. Laine, 2015 ONCA 519:

[59]       The trial judge then concluded this discussion with the following:

This is a judge alone trial. Submissions are not evidence. I have not and will not consider this as a case of alleged recent fabrication. It does not arise on the evidence. What is alleged is fabrication, pure and simple. The application is therefore dismissed.

[60]       The appellant can point to nothing in the trial judge's reasons to suggest that she did not do what she said she would do.

[61]       I do not accept this submission. As the trial judge herself noted, this was a judge-alone trial and she would not consider the case as one of recent fabrication. Her reasons demonstrate that she did not do so. I would not give effect to this ground of appeal.

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