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Criminal - Jury - Discharging a Juror

. R. v. Belleus

In R. v. Belleus (Ont CA, 2023) the Court of Appeal considered CCC 644 ['Discharge of Juror']:
(a) The trial judge’s ruling and jury instructions

[55] Near the close of the Crown’s case, the trial judge received a note from two jurors which stated that they found it “disconcerning that members of the accused family and associates are following jury members to their parking lot area after court is dismissed”, and that it had happened on the two previous days.

[56] The trial judge heard submissions from counsel on the need for an inquiry under s. 644(1) of the Criminal Code, R.S.C. 1985 c. C-46, which states:
Where in the course of a trial the judge is satisfied that a juror should not, by reason of illness or other reasonable cause, continue to act, the judge may discharge the juror.
....

(b) The principles that apply to an inquiry under s. 644(1)

[63] The appellant’s position is that the trial judge’s inquiry was inadequate to determine what had actually occurred in the “following” incidents, because the first question was too narrow and because the jurors were not permitted to explain what had occurred but could only answer “yes” or “no” to whether there had been communication. There was also no inquiry regarding who the two jurors believed had followed them, in the context of evidence that family and associates of the accused had conspired or helped him. Finally, there was no inquiry about what had been communicated to the rest of the jury by the two jurors. The appellant submits that as a result, the trial judge did not determine the facts necessary to decide whether there was a reasonable apprehension of bias by the jurors and therefore whether a fair trial was still possible.

[64] The governing principles that apply to the procedure for an inquiry under s. 644(1) to determine whether there is “other reasonable cause” to discharge a juror, as well as the standard and factors to be considered were recently reviewed by Watt J.A. in R. v. Durant, 2019 ONCA 74, 144 O.R. (3d) 465, at paras. 137-52.

[65] First, in R. v. Giroux (2006), 2006 CanLII 10736 (ON CA), 207 C.C.C. (3d) 512 (Ont. C.A.), at paras. 34-35, this court stated that a trial judge is afforded a high degree of flexibility to determine the appropriate procedure to be followed to resolve the issue that arises in the particular circumstances. However, the trial judge must ensure that the process will:
(i) be fair to all the parties and all the jurors;

(ii) be conducted in open court, on the record, and in the presence of the accused and counsel on both sides;

(iii) enable the trial judge to determine the true basis of the claim for discharge and to resolve it; and

(iv) preserve the integrity of the trial process and the impartiality of the jury.
[66] With respect to the fourth consideration, the “process is subject to strict limitations in order to protect two critical aspects of a jury trial: 1) the integrity of the process that ensures the accused is not lightly deprived of the right to be tried by a jury of twelve who reach a unanimous verdict; and 2) the secrecy of the jury’s deliberations”: R. v. Kum, 2015 ONCA 36, 320 C.C.C. (3d) 190, at para. 38; see also: R. v. Pan; R. v. Sawyer, 2001 SCC 42, [2001] 2 S.C.R. 344, at paras. 54-55, 59, and 77-78.

[67] The determination proceeds from the presumption that jurors are impartial, will follow the trial judge’s instructions and will be true to their oath. Clearly lack of impartiality can constitute “other reasonable cause” to discharge a juror under s. 644(1). The question for the trial judge is whether, based on the inquiry, there is a reasonable apprehension of bias on the part of the particular juror: R. v. Dowholis, 2016 ONCA 801, 133 O.R. (3d) 1, at para. 19.

[68] In R. v. Wolfe, 2005 BCCA 307, 197 C.C.C. (3d) 486, at para. 32, the British Columbia Court of Appeal set out the factors for a judge to consider on the issue of reasonable apprehension of bias, which include: the juror’s oath or affirmation, the presumption of impartiality, and the judge’s instructions on the fundamental legal principles including the need to keep an open mind, how to assess the evidence, the irrelevance of extraneous considerations, and the proper conduct of the deliberative process.

[69] Finally, a trial judge’s decision whether or not to discharge a juror is accorded substantial deference on appeal, meaning it can only be overturned where it is tainted by legal error or an error in principle, by a misapprehension of material evidence, or it is plainly unreasonable: R. c. Lessard (1992), 1992 CanLII 3103 (QC CA), 74 C.C.C. (3d) 552 (Q.C.C.A.), at p. 563; R. v. Cunningham, 2012 BCCA 76, 287 C.C.C. (3d) 488, at paras. 25-26.

....

[73] The trial judge correctly determined that an inquiry of the two jurors under s. 644(1) was required in the circumstances. The issue on appeal is the sufficiency of the inquiry.

[74] The only case raised by the appellant where a new trial was ordered based on an insufficient inquiry, as opposed to a failure to conduct any inquiry at all, is R. v. Afghanzada (2000), 2000 CanLII 16953 (ON CA), 149 C.C.C. (3d) 349 (Ont. C.A.). In that case, where a defence witness claimed that he saw jurors communicating with the officer-in-charge, the inquiry was held to be insufficient because it failed to establish what, if any, communication took place. At para. 19, this court concluded:
It may well be, at the end of the exercise, that the trial judge would have come to the same conclusion she reached in her ruling. There may not have been a discussion between the officer and a juror or jurors about the case; or, if there had been, the nature of the discussion may have been completely benign and would not have compromised the fairness of the trial. Given the incomplete and inconclusive nature of the inquiry, however, it cannot be said with a sufficient degree of comfort that such was the case. An appearance of unfairness remains.
. R. v. Pan

In R. v. Pan (Ont CA, 2023) the Court of Appeal considers the decision of a trial judge to discharge a jury member:
[103] That said, it was still open to the trial judge to discharge juror #4 given the cumulative effect of these events and their impact on the appearance of juror impartiality. However, he found that the events had not undermined the appearance of the fairness of the trial. Ultimately that was the trial judge’s call to make. As Laskin J.A. observed in R. v. Kossyrine, 2017 ONCA 388, 138 O.R. (3d) 91, at para. 51:
Also, in exercising the discretion under s. 644(1) [SS: 'Discharge of juror'], a trial judge is in a far superior position to that of an appellate court. The trial judge is able to observe the juror, see how the juror answers questions and listens to instructions and watch how the juror reacts to what is going on in the courtroom. An appellate court has none of these advantages.


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Last modified: 15-11-23
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