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Criminal - Jury - Discharging a Juror. R. v. Zhou
In R. v. Zhou (Ont CA, 2024) the Ontario Court of Appeal dismissed a defendant's criminal appeal, here where the convictions were for "sexual assault and forcible confinement."
Here the court considers 'jury selection', and juror discharge, issues:[30] I agree with amicus that the trial judge committed an error in the procedure he used for allocating peremptory challenges. However, I agree with the respondent that this was a procedural error that did not cause prejudice, and the curative proviso in s. 686(1)(b)(iv) of the Criminal Code should therefore apply.
[31] Prior to the abolition of peremptory challenges in 2019, s. 634(2)(b) of the Criminal Code entitled an accused (and the Crown) to 12 peremptory challenges on a jury trial involving the offences with which the appellant was charged: see R. v. Chouhan, 2021 SCC 26, [2021] 2 S.C.R. 136, at para. 10. Section 634(2.1) provided for the addition of one peremptory challenge in respect of each alternate juror. The provision was worded as follows:If the judge makes an order for alternate jurors, the total number of peremptory challenges that the prosecutor and the accused are each entitled to is increased by one for each alternate juror. [Emphasis added.] [32] The trial judge appears to have interpreted ss. 634(2)(b) and 634(2.1) in combination to mean that the first 12 peremptory challenges were to be applied to the selection of the 12 jury members and the next 2 peremptory challenges were to apply to the selection of the alternate jurors. However, this does not accord with the plain wording of s. 634(2.1), which referred to the “total number of peremptory challenges” being “increased by one for each alternate juror” (emphasis added).
[33] Moreover, the trial judge’s interpretation is incongruous with the fact that s. 634(2.01), which addressed the number of peremptory challenges when a jury of 13 or 14 members was appointed, used almost identical language to s. 634(2.1):If the judge orders under subsection 631(2.2) that 13 or 14 jurors be sworn in accordance with this Part, the total number of peremptory challenges that the prosecutor and the accused are each entitled to is increased by one in the case of 13 jurors or two in the case of 14 jurors. [Emphasis added.] [34] Interpreting s. 634(2.01) consistently with how the trial judge interpreted s. 634(2.1) would create a distinction between the selection of the first 12 jurors and the remaining jurors that is not supported by the plain language of s. 634(2.01) or of any Criminal Code provision referring to additional jurors.
[35] The Crown argues that the trial judge was simply exercising his trial management powers. I disagree. Trial judges have broad trial management powers, but these powers are limited to discretion over matters that are not contrary to provisions in the Criminal Code: R. v. Province, 2019 ONCA 638, at para. 89. As reviewed above, the wording of s. 634(2.1) was clear; it did not suggest that a trial judge had the discretion to distinguish between peremptory challenges available to challenge jurors and alternate jurors.
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[43] The threshold for establishing reasonable apprehension of bias is high, and the trial process incorporates many safeguards to protect against potential jury partiality: R. v. Tutiven, 2022 ONCA 97, 411 C.C.C. (3d) 475, at para. 24, leave to appeal refused, [2022] S.C.C.A. No. 275. In this case, the concern that the alternate juror may not have been impartial because Juror #12 was one of the triers is speculative. In the absence of any further evidence raising concerns about the alternate juror, I see no merit to this ground of appeal.
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[47] There is a strong presumption that jurors will discharge their duties with impartiality and a heavy burden on parties who seek to rebut that presumption: R. v. Dowholis, 2016 ONCA 801, 133 O.R. (3d) 1, at para. 18; R. v. Godwin, 2018 ONCA 419, at para. 14. When deciding whether to discharge a juror pursuant to s. 644 of the Criminal Code, the trial judge is to approach the issue from a presumption that jurors follow their duties in accordance with the trial judge’s instructions and the oath they made: R. v. Durant, 2019 ONCA 74, 144 O.R. (3d) 465, at para. 146.
[48] The threshold for discharging a juror based on a reasonable apprehension of bias is high: Dowholis, at para. 19. As Watt J.A. explained in Durant, at para. 150, the test is viewed from the perspective of a reasonable person:The apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining the required information about it. The grounds for the apprehension must be substantial. The test is what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. [Citations omitted.] [49] On appeal, the trial judge’s decision not to excuse a juror on the basis of alleged bias is owed substantial deference and is only to be set aside if it was tainted by an error of law or principle, there is a misapprehension of material evidence or if it is a decision that is plainly unreasonable: Durant, at para. 152.
[50] In this case, the trial judge found the information that the appellant brought to his attention about Juror #2’s writing and work experience was not an adequate basis to justify further inquiries into her capacity to act as an impartial trier of fact.
[51] His conclusion on this issue was consistent with decisions of the Supreme Court and this court, which have held that an individual’s prior personal experience or work in the area of sexual violence does not, on its own, render that person incapable of deciding a sexual assault case impartially: R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at paras. 98-100; R. v. A.B. (Betker) (1997), 1997 CanLII 1902 (ON CA), 33 O.R. (3d) 321 (C.A.), at p. 342, leave to appeal refused, [1997] S.C.C.A. No. 461. See also R. v. Poon, 2012 SKCA 76, 399 Sask. R. 89, at para. 16. . 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.
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[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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