OTTAWA – Pulling up a picture of notorious cult leader and serial killer Charles Manson on your screen in full view of a juror to discredit a witness based on their appearance is “very inappropriate” and will result in a mistrial, an Ontario judge has ruled.
In a harshly worded decision published last week, Ontario Superior Court justice Janet E. Mills lambasted lawyers and colleagues Jean-Alexandre De Bousquet and Thomas Benstead for their “highly prejudicial” and “inexcusably disrespectful” behaviour toward a witness.
“The conduct of counsel was disrespectful to the witness and searching images of Charles Manson within view of the jury was highly prejudicial to the Plaintiff,” who is their client, reads the ruling.
In an interview, De Bousquet said he was appealing the judge’s mistrial ruling because it sets a “dangerous precedent.”
“It’s probably the first time in Canadian history where a mistrial is ordered after a counsel is accused of thinking that a witness looks like a serial killer,” he said.
The incident occurred during an October hearing for a case in which ex-Sobeys employee Jessica McGaw is suing her former employer for wrongful dismissal. McGaw claims another employee fabricated allegations about her and was the “ringleader” who convinced her colleagues to “gang up” on her and eventually got her fired.
But while the unnamed employee was testifying, Mills wrote that McGaw’s lawyers, De Bousquet and Benstead, “called up on their computer images of Charles Manson and then huddled together and laughed between themselves” in full sight of a member of the jury. A juror later notified the judge of the “very inappropriate” behaviour.
“Evidently, counsel were of the view the witness bore some resemblance to the notorious cult leader who was imprisoned for murder and conspiracy to commit murder, having coerced his followers to kill a number of people. This was done within a direct sightline of the jury box,” Mills wrote.
After grilling McGaw’s lawyers over the incident, Mills decided that simply instructing jurors to ignore what they’d seen wasn’t enough and discharged the jury. When McGaw declined to continue the case solely in front of the judge, Mills ordered a mistrial.
De Bousquet said he and Sobeys’ lawyers opposed the call for a mistrial. Sobeys’ lawyers declined to comment.
In a subsequent ruling, Mills also denied De Bousquet and Benstead’s request that she recuse herself over a perceived bias after having declared the mistrial.
“I am not satisfied that a reasonable or fair minded person would perceive bias simply because of my decision to declare a mistrial on learning that at least one juror had witnessed counsel laughing and comparing the appearance of a material witness to Charles Manson,” Mills wrote.
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In an interview, De Bousquet refused to answers questions about whether a picture of Charles Manson appeared on his computer during the hearing, but denied his colleague and him ever huddled together and laughed over the contents of his screen.
He also questioned how a juror could have seen the contents of his screen considering the layout of the courtroom and strongly criticized the judge for questioning him on the contents of his computer screen, which he says are covered by “litigation privilege.”
But in her ruling, Mills threw out the argument that what appeared on his computer that led to the juror’s complain was covered by litigation privilege.
“Counsel now submits that the image of Charles Manson on his computer was subject to litigation privilege, and it was part of the Plaintiff’s overall litigation strategy. Counsel submits that the witness’ appearance was viewed negatively by his co-workers and that his demeanour was considered to be ‘weird’. He asserts that it was his intention to cross-examine the witness and depending on the evidence elicited, use the image of Charles Manson as part of his litigation strategy,” she wrote.
“This submission is of great concern. It confirms counsel’s intention to discredit the witness before the jury by inviting it to make an adverse inference about his credibility solely based on his appearance; likening it to a known and convicted serial killer. This is absolutely impermissible cross-examination. It plays into stereotypes based only on appearance. It would not have been allowed if counsel had pursued this line of questioning.”
De Bousquet also said that no one except the judge ever mentioned Manson’s name out loud or the witnesses’ “uncanny” resemblance to the notorious killer.
“It’s not for the judge to interrupt the trial and question us about the contents of our computers. Clearly, the judge thought that the witness looked like Charles Manson. So did the juror who wrote the note. I never commented that the witness looked like Charles Manson,” he said.
“It was entirely the judge’s initiative to stop the trial and interrogate counsel about the contents of their computers, which is subject to litigation privilege. In the end, the judge ordered the mistrial for what is the equivalent of thought crimes. Improper thoughts. The thought crime would be to think that the witness bore certain similarities to Charles Manson,” he said in the interview.
He later added by email that the ruling “sets a dangerous precedent.”
“I believe Justice Mills’ decision could have a chilling effect on the bar by making lawyers concerned that their thoughts, their privileged conversations, their notes and the contents of their computers can now be subjected to inquiry by the Court in the midst of trial, and to subsequent disclosure to opposing parties.”
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