Jury Discharged After Counsel Refers To Plaintiff By First Name, And References Miscarriage

In Demello v. Chaput, the Plaintiff was injured in multiple collisions, and brought ICBC claims for damages. In the opening statement to the jury, counsel for the Plaintiff made reference to the Plaintiff by his first name, and also made reference to a miscarriage suffered by the Plaintiff’s wife. The Court ruled that this was improper, and discharged the jury.

 

[30]         I find that in the circumstances of the comments as they were made yesterday, it would be impossible to dispel the chain of reasoning that the accident ultimately led to the miscarriage.  To make a further comment would underscore that, and, as noted in the above cases, it would be impossible to effect a correction without drawing attention to the problem and refer to what is not going to be led in evidence.

 

[31]         I do not find that this is the same as the circumstances in the cases Zhong v. Ao and Holman v. Martin, which were not jury trials.  I do not find that the remarks are appropriate for an opening, and rather that they are inappropriate and inflammatory and appear designed to have evoked sympathy, and that it would be impossible to craft an instruction to the jury that would be able to dispel that possible sympathy to the jury.  As noted, as well, that there were similar objections to references to the position of the defendant respecting liability which cause concern.

 

[32]         The remarks in relation to the miscarriage were sufficient to cause this court grave concerns such that I am going to direct that the jury be discharged.  While I find that those remarks are questionable, I am not going to comment on them in these reasons as it is not necessary for me to do so.  I do note that the reference to the plaintiff by his first name is considered inappropriate and has been considered so by both the Ontario courts and by the Court of Appeal.

 

[33]         In all of the circumstances, I order that the jury in this matter be discharged.

 

[34]         I note that, pursuant to the provisions of Rule 12, that counsel for the defendant submits that the matter can proceed judge alone.  In the circumstances, I am going to order that the matter carry on as a judge alone trial.

 

Leave a Reply

Your email address will not be published. Required fields are marked *