IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           THE COURT:  Mr. Szabo, I want you to listen very carefully to this. 

[2]           At the beginning of the trial of Mr. Szabo on information 91595-1, Mr. Szabo's then counsel made admissions.  One of them was identification.  After the first day of trial, Mr. Szabo fired his lawyer.  He is entitled to do that. 

[3]           We continued with the crown's case and of course crown counsel conducted the crown's case in accordance with the admissions that were made by Mr. Szabo's counsel. 

[4]           As I have said, crown is entitled to do that, to rely on the admissions made by Mr. Szabo's lawyer at the beginning of the trial.  Of course, as a result crown has not required any of its witnesses to identify Mr. Szabo in Court. 

[5]           At the end of the crown's case, it then became Mr. Szabo's turn to call defence evidence.  He testified under oath that amongst other things he did not understand what his counsel said about admissions; that he did not know what the admissions meant.

[6]           As a result, crown is in the difficult position of having to rely on admissions that now are not acknowledged by Mr. Szabo or are at least questioned by Mr. Szabo.  He raised these objections to the admissions further on in the trial, however, I waited until they were made under oath so that I had an evidentiary basis for the ruling that I am about to make. 

[7]           There is this remedy, Mr. Szabo, called a mistrial.  It is allowed by a trial judge such as myself only in the rarest of cases and only in the clearest of cases.  It is an extreme remedy when there is no other remedy available to correct.  I will not say an error, but a miscarriage of justice. 

[8]           I have been referred to the Supreme Court of Canada decision in R. v. Khan, the citation for which is 2001 SCC 86 (CanLII), [2001] S.C.J. No. 83 and it is the leading case regarding the remedy of miscarriage of justice. 

[9]           In this case in my view there is no other alternative because the crown's case is based on admissions made by your lawyer.  There is no other cure available in law and to continue in my view would amount to a miscarriage of justice and also would not provide for any remedy upon which the entire crown's case has been based. 

[10]        In my view, the requirements in R. v. Khan, supra, have been met and it is with deep regret at this point I declare a mistrial. 

[11]        MS. BERMAN:  Your Honour -- Your Honour of course did not hear submissions with the -- from the crown with respect to the mistrial

[12]        THE COURT:  No.

[13]        MS. BERMAN:  The one suggestion that the crown was going to make is whether Your Honour would be willing to allow the crown to re-open our case to call further evidence with respect to identification?

[14]        THE COURT:  Ordinarily I would, but Mr. Szabo is self-represented and he would have to have legal advice about what it means for the crown to re-open its case.  So I have considered that as a remedy that might be available to cure the error, for lack of better words.  But in my view, given that he is self-represented and in custody, that would not go to the basis of the error that has been made.  So I have considered that as an option.

[15]        MS. BERMAN:  Thank you, Your Honour.