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Civil Procedure - Jury Trial - Closing Address

Gilbert v South (Ont CA, 2015)

In this case the Court of Appeal discussed the ethical limits of counsel when making a closing address in a civil trial, and the remedial options of judges where the address is improper:
(c) Discussion

[17] In three reasonably recent decisions, our court has discussed the role of the advocate in adversarial proceedings, the limits on an advocate’s closing address to a civil jury, the remedies available to a trial judge when a closing address is improper, and the scope of appellate review: see Brochu v. Pond (2002), 2002 CanLII 20883 (ON CA), 62 O.R. (3d) 722; Landolfi v. Fargione (2006), 2006 CanLII 9692 (ON CA), 79 O.R. (3d) 767; Fiddler v. Chiavetti, 2010 ONCA 210 (CanLII), 317 D.L.R. (4th) 385.

[18] The advocate’s role for one party in a civil trial is necessarily partisan. Because it is partisan, the advocate has the right, even in some cases the duty, to make an impassioned and zealous address on behalf of a client. The commentary to Rule 5.1-1 of our Law Society’s Rules of Professional Conduct puts it this way: “In adversarial proceedings, the lawyer has the duty to the client to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client’s case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law.”

[19] Because the advocate has this right, even this obligation, courts have understandably given the advocate wide latitude in a closing jury address. But our courts have also recognized that even this wide latitude given to a closing address has limits. One limit is that it is not proper – except perhaps in the rarest of cases – for counsel to impugn the integrity of opposing counsel or even of opposing counsel’s client: see Landolfi, at paras. 79-80, 91.

[20] Thus, I think the trial judge was right to be concerned about the comments of Gilbert’s counsel set out above. They were improper. They exceeded the limits of zealous advocacy. They raised the risk the jury would focus on the character of York Fire’s counsel and his client instead of what the jury should focus on: the evidence.

[21] Faced with an improper closing jury address warranting intervention, a trial judge has a choice of three remedies: caution the jury by giving a correcting instruction, strike the jury and conduct the trial alone, or declare a mistrial.

[22] A mistrial is a remedy of last resort: R v Toutissani, 2007 ONCA 773 (CanLII), at para. 9. It results in extra costs and delays the resolution of the parties’ dispute. It should only be granted where, as the trial judge correctly said, a correcting instruction to the jury cannot cure the prejudice caused by counsel’s improper comments. And because the decision not to declare a mistrial is discretionary, it “attracts considerable deference from this court”: see Landolfi, at para. 99.

[23] The trial judge’s refusal to grant a mistrial was entirely reasonable. To intervene, allow the appeal, and order a new trial, we would have to be satisfied his refusal caused a substantial wrong or miscarriage of justice: see Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(6). Here, the trial judge’s refusal did not cause any miscarriage of justice. The improper comments of Gilbert’s counsel were few and were not so serious or so prejudicial that they could not be addressed by an appropriate correcting instruction to the jury. Thus, appellate intervention in the exercise of the trial judge’s discretion would be entirely unjustified. I would not give effect to this ground of appeal.

II. Alternatively, did the trial judge err by failing to give a proper correcting instruction?

[24] Instead of ordering a mistrial, the trial judge gave a correcting instruction to the jury. York Fire submits that it did not go far enough because it did not condemn counsel’s comments. Instead, according to York Fire, the trial judge tacitly approved of those comments. I do not accept York Fire’s submission. The trial judge’s correcting instruction was fair. No condemnation of counsel’s comments was needed.

[25] In Landolfi, at paras. 105-6, Cronk J.A. discussed when in the proceedings a trial judge should give the correcting instruction and what it should say. A trial judge should give a correcting instruction right after the closing jury addresses or early in the charge to the jury. The trial judge in this case met that requirement. He gave his correcting instruction right at the beginning of his charge to the jury.

[26] Ideally, a correcting instruction should have four components. It should:

• be clear and unambiguous;

• point out to the jury the offending comments;

• explain that these comments are improper and why they are so; and

• instruct the jury to disregard the comments and base its findings and decision solely on the evidence.
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