The judicial duty to protect fair trials

R v RE, 2025 ONSC 2795: On his own motion, Mirza J finds that defence counsel's advocacy was so wanting as to render the trial unfair. Mistrial declared and new trial ordered.

This must have been an extremely difficult decision. Mirza J's 268-paragraph ruling painstakingly lays out the conduct giving rise to his concerns, the efforts he took to try to salvage the trial, and his ultimate reasons for concluding that no remedy other than a mistrial could cure the prejudice to the accused. No judge wants to make the conduct of counsel an issue in the trial, much less a decisive one. Mirza J clearly felt that he had no other choice.

A few important takeaways:
1. There is a strong presumption of competence on the part of counsel. Apparent competence issues might in fact flow client instructions or simply reflect an overwhelming Crown case. Trial judges should not lightly or routinely question defence counsel's competence, and when they do must provide notice and an opportunity to respond.

2. That said, where there is a real danger that defence counsel's incompetence may render a trial unfair, trial judges have the authority (and the duty) to raise ineffective assistance of counsel on their own motion. They need not wait for the appellate process to sort out the IAC claim. They are in the best position to assess the impact of defence counsel's incompetence on the fairness of the trial.

3. Trial judges can grant a mistrial even over the objection of the defendant themselves. In this case, defence counsel asked the defendant to address the trial judge directly. He said that he "thought she did a good job". In the circumstances, Mirza J was not satisfied this was an informed opinion, noting that the defendant had not received independent legal advice.

To me, this decision speaks to a continuing need for investment in mentorship, continuing professional development, and a culture of excellence in the defence bar. As Mirza J notes at the beginning of his judgment, "[d]efence counsel are typically extraordinarily hard-working, competent lawyers who are essential for a fair and effective trials". But our private voucher model has few safeguards against lawyers accepting cases they are simply not ready for, which seemed to happen here. How do we make sure junior lawyers develop the skills they need to succeed in high-stakes trials in a private voucher system with few second chair opportunities?