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Obtaining a Mistrial in Alberta

In the recent case of , Roberts v Edmonton Northlands, 2022 ABQB 515 the court considered mistrials in Alberta.

The Court said at paragraph 7:

In R v Burke, 2002 SCC 55 at para 75, Justice Major directed trial judges deciding mistrial applications with the following test: “in declaring a mistrial, the trial judge therefore turns his or her mind to the question of whether a mistrial is needed to prevent a miscarriage of justice.”

[8] The following legal principles govern an application for a mistrial in both civil and criminal matters:

• A mistrial is a discretionary remedy and should be avoided if reasonable alternatives exist: Craggs v Stolz, 2004 ABCA 196 at para 4 and Homeniuk v Costain, 2008 ABQB 197 at para 3.

• Competent counsel is a component of a fair trial and counsel is presumed competent: R v GDB, 2000 SCC 22 at paras 25 and 27 [GDB].

• The onus to demonstrate the necessity of a mistrial rests on the party seeking the mistrial: GDB at para 27.

• Incompetence of counsel can amount to a miscarriage of justice; however, a nexus must exist between the incompetence and prejudice to client: R v Meer, 2015 ABCA 141 at para 43.

• A court should generally only opine on competence of counsel if it is apparent that prejudice has occurred: GDB at para 29.

• Evidence is required to support an application for a mistrial: R v Levin, 2012 ABQB 769 at para 57.

Generally, the courts try to avoid mistrials if possible. If you would like advice on a matter related to this article please feel free to contact us.

The information contained in this article is not legal advice. No solicitor client relationship is formed through this article. The reader is encouraged to retain counsel for advice in these matters.

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