When do Counsel’s Submissions Give Rise to a Mistrial?

The declaration of a mistrial is a remedy of last resort, reserved for the clearest of cases, where no remedy short of a mistrial will adequately redress the actual harm occasioned. A mistrial should only be ordered where it “is necessary to prevent a miscarriage of justice”.
R. v. A.G., 2015 ONCA 159, [2015] O.J. No. 1217, at para. 50; R. v. Chiasson, 2009 ONCA 789, [2009] O.J. No. 4682, at para. 14; R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857, at para. 77.
The remedy of a mistrial contemplates a fatal wounding of the trial process, a wounding to the administration of justice which cannot be cured by other remedial measures.
R v Lawson (1991), 1991 CanLII 194 (BC CA); R. v. Arabia, 2008 ONCA 565 (CanLII) at para 52; R. v. Karim, 2010 ABCA 401 (CanLII) at para 29.
A trial judge is in the best position to assess the impact of counsel’s remarks to the jury and to correct any unfairness or inaccuracies with appropriate jury instructions. The decision of whether to grant a mistrial is a matter of discretion of a trial judge.
R. v. Rose, [1998] 3 S.C.R. 262, at para. 126
It follows that an appellate court should only interfere where such a response is clearly wrong or based on an erroneous principle.
Chiasson, at para. 14; R. v. A.G., at para. 51.
Any harm caused by unfairness or inaccuracies in counsel’s closing submissions may be ameliorated by a trial judge’s strong correcting instruction to the jury.
R. v. Osborne, 2017 ONCA 129, at para 85.
The jury is presumed to have understood and followed these correcting instructions.
R. v. Corbett, [1988] 1 S.C.R. 670, at p. 695; R. v. Pannu, 2015 ONCA 677, 127 O.R. (3d) 545, at paras. 61 and 98.

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