COURT FILE NO.: CR-371/17 DATE: 2020 06 26 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Ikdeep Singh, for the Crown
- and -
CLAIRE GRAHAM and ROSLYN BLAKE Michael Doyle, for Claire Graham Nakita Kelsey, for Roslyn Blake
Heard: September 16, 2019
REASONS FOR DECISION (Request to Discharge Juror 1 and Juror 4 and Request for Mistrial)
Kumaranayake J.
[1] On September 16, 2019, both defence counsel brought an oral application for a mistrial on the basis that two jurors should be discharged for misconduct. The Crown opposed this request. After hearing argument, I declined to grant the defence request; neither juror was discharged, and I determined that a mid-trial instruction to the jury was required. At the time I made my decision, I advised counsel that written reasons would follow. These are those reasons.
BACKGROUND
[2] Ms. Graham and Ms. Blake were charged with fraud over $5,000. It was alleged that Ms. Graham and Ms. Blake perpetrated a complex fraud and misappropriated in excess of $2 million from the trust account of Charles Ocran, a lawyer who practiced real estate. Ms. Graham operated her own business as a law clerk. She worked exclusively for Mr. Ocran, although she was not his employee. It was alleged that through a series of cheques, money flowed from Mr. Ocran’s trust account into a holding company owned by Ms. Blake. Then, it was alleged that the money was used to finance Rozz Entertainment, a banquet hall/nightclub. Ms. Blake and Ms. Graham were both directors of Rozz Entertainment.
[3] Jury selection started on July 30, 2019 and was completed on August 2, 2019. During the jury vetting/selection process, all potential jurors were advised that the trial would start on August 6, 2019, and that counsel estimated it would take approximately three to four weeks to complete the trial.
[4] The potential jurors were also advised that the trial would not sit between August 29, 2019 and September 6, 2019 (i.e. the last week of August 2019 and the first week of September 2019) and the trial would resume on September 9, 2019. They were also informed that the estimate of three to four weeks was an estimate and the trial may take more or less time than estimated by counsel.
[5] The trial was heard the weeks of August 6, 12, and 19, 2019, and resumed the week of September 9, 2019. Until September 11, 2019, there were 12 members of the jury. By September 13, 2019, two jurors had been discharged, leaving a jury composed of 10 jurors.
[6] Before outlining the positions of counsel with respect to Juror 1 and Juror 4, it is necessary to review why two jurors had been discharged on September 11, 2019 and September 13, 2019.
Discharge of Juror 9
[7] On September 11, 2019, I was provided with a note written by Juror 9 by which Juror 9 requested to be excused from continuing to serve on the jury. A copy of the note was provided to all counsel, read into the record, and marked as Exhibit P. The essence of Juror 9’s request to be discharged was that this juror and his spouse learned that their child’s school was near the street where Ms. Blake lived, and they were concerned for their safety if they ran into Ms. Blake or any of her family members.
[8] Upon reviewing the note from Juror 9, all counsel agreed that Juror 9 should be discharged. No counsel requested a mistrial.
[9] However, Ms. Kelsey requested that an inquiry be held. The purpose of that inquiry would not be for me to determine whether Juror 9 ought to be discharged, but to make inquiries as to the possibility of the other members of the jury being influenced by an outside source (the juror’s spouse). Mr. Doyle and Mr. Singh opposed Ms. Kelsey’s request arguing that the basis of her request was pure speculation.
[10] After considering the submissions of counsel, I determined that Juror 9 would be discharged. I was satisfied based on the note that there was reasonable cause for Juror 9 to be discharged. An inquiry was not necessary for me to make this determination.
[11] I did not grant Ms. Kelsey’s request that an inquiry be held. The reasons given by her to support this request was to determine the possibility of a possibility. There was nothing before me to support this speculative inquiry. I found that this particular juror’s reasons for being discharged were highly personal to the juror and the juror’s family. There was no reason to believe that the other members of the jury had not been following my instructions to date. There was no reason to believe that they would not continue to do so.
[12] After Juror 9 was discharged, I provided the following mid-trial instruction to the remaining 11 jurors prior to the trial continuing:
Good afternoon ladies and gentlemen. Thank you for your patience.
Members of the jury, you will notice that one of your colleagues is no longer with you as a juror in this trial. We will continue the trial with 11 jurors as the law permits us to do.
A judge presiding in a jury trial has the authority to discharge a juror, which brings to an end that juror’s participation in the trial. I have decided to do that in this case in connection with your former colleague.
Please do not speculate about why I have discharged your former colleague. Why I have decided to do so has nothing to do with your decision in this case. Absolutely nothing. We will continue with the trial.
Discharge of Juror 12
[13] On September 13, 2019, Mr. Doyle brought to my attention possible misconduct by Juror 12. While this concern was raised in the absence of the jury, it was only raised after the court had resumed following the lunch recess. The alleged misconduct was that Juror 12 had conducted research into Ms. Graham by accessing Ms. Graham’s LinkedIn profile.
[14] Once Mr. Doyle raised the issue of possible misconduct, I gave instructions to the court staff that Juror 12 be separated from the other members of the jury.
[15] Mr. Doyle outlined the basis of his concern. His client, Ms. Graham, had informed him the previous night (i.e. September 12, 2019) that she believed that Juror 12 had accessed Ms. Graham’s LinkedIn profile in or about August 22, 2019. Around that time, Ms. Graham received a notification that that her profile had been viewed and when Ms. Graham looked to see who had accessed her profile, she saw the name and a photograph of the person who had accessed her profile. I was advised that the name and photograph of the person was familiar to Ms. Graham, but at that time, she made no connection to this trial or any member of the jury.
[16] Mr. Doyle explained that after Juror 9 had been discharged on September 11, 2019, Ms. Graham reviewed again the name and photograph of the person who accessed her LinkedIn profile on or about August 22, 2019 and believed it to be Juror 12.
[17] After Ms. Graham brought this to his attention, Mr. Doyle advised that he made his own inquiries and checked his notes from the jury selection process and he too believed that the person who accessed Ms. Graham’s profile was Juror 12.
[18] When asked why he did not bring this to my attention the morning of September 13, 2019, Mr. Doyle’s explanation was that he had wanted to speak to Ms. Kelsey first and he had not able to do so until the lunch recess. He also advised that he had been unable to speak with Mr. Singh.
[19] As Mr. Singh had just learned this information, I granted his request for a recess so that he could consider his position.
[20] When court resumed, all counsel agreed that Juror 12 should be discharged. No counsel requested a mistrial.
[21] I held an inquiry of Juror 12. When asked if she had conducted research into any of the participants in the trial, she confirmed that she had looked up Mr. Doyle and Ms. Kelsey on Google in order to find out where they worked, if they were from a big firm or worked by themselves. She stated that she had done this research at the beginning of the jury selection process (i.e. around July 30 or 31, 2019) and that she was not the only one who had done so. She had a clear recollection that she had done this research prior to the Crown’s opening statement and prior to evidence being called.
[22] Juror 12 stated that she could not remember what she learned about Mr. Doyle and could not remember if she had been successful in finding him. With respect to Ms. Kelsey, Juror 12 stated that she learned that she worked for a law firm called Mattis Law and that she learned nothing else.
[23] However, Juror 12 stated that she learned from someone else on the jury who had been looking up the lawyers within the last week or two, that Ms. Kelsey was a young and upcoming lawyer who was successful in the case that she handled. Juror 12 could not remember who among the jury had found this information about Ms. Kelsey.
[24] When specifically asked if she had done any research on any other participant in the trial, including either of the accused, Juror 12 denied that she had done so.
[25] When asked if she had a LinkedIn account, she stated that she did, but it had been dormant as she had not used it for about two months or so, and that she had not used it since around the same time as this trial started. She did acknowledge that after the trial started, she used her spouse’s LinkedIn account to assist him to find two people known to him.
[26] At the end of my initial inquiry of Juror 12, and in the absence of Juror 12, all counsel confirmed that they continued to agree that Juror 12 ought to be discharged. No counsel sought a mistrial. However, Mr. Doyle and Ms. Kelsey requested that the printout from Ms. Graham’s LinkedIn profile page be put to Juror 12 as it showed that Juror 12 had used her LinkedIn account as recently as three days earlier. Mr. Singh did not think that this was necessary but was not strongly opposed to it.
[27] I continued the inquiry of Juror 12. The printout from Ms. Graham’s profile was shown to Juror 12. She acknowledged that the printout showed her name and her photograph. She maintained, however, that she had only looked into Mr. Doyle and Ms. Kelsey at the beginning of the trial, as she had previously described. She did not acknowledge that she had used her LinkedIn account since the trial had started or that she had accessed Ms. Graham’s LinkedIn profile.
[28] Based on the record before me and having taken into consideration the submissions of counsel, I was satisfied that there was reasonable cause to discharge Juror 12. After Juror 12 was informed that I had no choice but to discharge her from the jury, I also directed that Juror 12 was not to have any communication whatsoever, in any form, with any participant of this trial, any other jury member or former jury member. I reminded Juror 12 that if my order was not followed, Juror 12 would be in contempt and that there would be serious consequences.
Inquiries of the 10 remaining jurors
[29] The inquiries with the remaining 10 jurors started at approximately 6:00 p.m. on September 13, 2019. Prior to starting the inquiries, I reviewed with counsel the questions that I intended to pose. Mr. Doyle asked for modification to incorporate a specific reference to counsel being one of the participants. I accepted his suggestion. All counsel indicated that they were content with the proposed questions. The questions which I posed to each juror are:
- Did the juror do any research into any of the participants in this case? Participants include: witnesses, lawyers, court staff, and the accused, Ms. Graham and Ms. Blake.
- If so, what did they find?
- Did they communicate what they found with any other juror?
- Has the juror learned any information from outside of this courtroom about any of the participants in this trial from any source? Participants include: witnesses, lawyers, court staff, and the accused, Ms. Graham and Ms. Blake; and any source includes any current or former member of the jury.
[30] I also reviewed with counsel the procedure that would be followed for each inquiry. Each juror would be brought into the courtroom one by one and would be instructed to bring their belongings with them. Once I asked my questions, the juror would leave the courtroom and I would instruct the juror to return on Monday (September 16, 2019) at 10:30 a.m. and go to the Jury Assembly Room (as opposed to their Jury Room, where they usually would have gathered); and they were not to discuss this case, or any aspect of this case, with any participant in this trial, including other members of the jury or former members of the jury.
[31] When asked, no counsel had any concerns with the procedure or instruction that I outlined.
[32] The inquiries of the 10 remaining jurors were completed by approximately 6:45 p.m. on September 13, 2020. Counsel and the accused were asked to return on September 16, 2019 at 9:30 a.m. to address the outcome of these inquiries.
[33] When Mr. Doyle raised the issue of possible misconduct by Juror 12, Ms. Blake was in the midst of cross-examination by Mr. Singh. At the conclusion of the inquiries of the 10 remaining jurors, I granted permission for Ms. Kelsey and Ms. Blake to speak for the purpose of Ms. Kelsey obtaining instructions. I made it very clear that there was to be no discussion of any of the evidence. Neither Mr. Singh nor Mr. Doyle had any objections.
[34] Further, it should be noted that arrangements were made for additional court staff to be present in the Jury Assembly Room on the morning of September 16, 2019 to ensure that the remaining 10 members of the jury did not communicate with each other while they were waiting. This precaution was taken in the event that additional questions needed to be asked of the individual jurors on September 16, 2019.
What was learned through the individual inquiries of the 10 jurors?
[35] The inquiries of seven of the remaining 10 jurors demonstrated that none of these seven jurors had undertaken any research into any of the participants, including the lawyers or either accused, and that none of these jurors had learned any information about this case from any source outside of the courtroom. These seven jurors were Jurors 2, 3, 5, 6, 7, 10, and 11.
[36] However, the inquiries of Jurors 1, 4, and 8, indicated that my instruction not to conduct research about any of the participants had not been followed.
Juror 1
[37] Juror 1 acknowledged that on September 12, 2019, she had accessed the LinkedIn profile for Mr. Singh and Ms. Kelsey. She indicated that she wanted to learn when each had completed school. She did not recall learning any other information. She stated that she had discussed what she learned with other jurors. She stated that she had not done any other research. When she was specifically asked about the accused, Juror 1 indicated that she had not researched either Ms. Graham or Ms. Blake.
Juror 4
[38] Juror 4 was visibly upset when she entered the courtroom. She readily acknowledged that she had researched all of the lawyers using Facebook but stated that she did not find any of them on Facebook. She also stated that other jurors were also researching the lawyers. She identified that she believed it was Juror 1 and “former Juror 12” who had been researching the lawyers.
[39] Juror 4 indicated that she did not discuss with anyone else that she was looking up the lawyers on Facebook, but she was sitting with Juror 1 at the time, so it may have been inferred.
[40] When asked why she used the phrase “former Juror 12”, she indicated that she had been informed by a court services officer that Juror 12 had been discharged.
Juror 8
[41] Juror 8 indicated that she did not research any of the participants. However, she learned from others who had researched the lawyers where Ms. Kelsey went to school. Juror 8 stated that she learned nothing about Mr. Doyle or Mr. Singh.
THE PARTIES’ POSITIONS ON SEPTEMBER 16, 2020
[42] The morning of Monday September 16, 2020, Mr. Doyle and Ms. Kelsey each advised that they were requesting a mistrial on the basis of misconduct by Juror 1 and Juror 4. Mr. Singh opposed the request for a mistrial.
Mr. Singh
[43] Mr. Singh argued that the conduct of Jurors 1 and 4 was a technical breach of my instructions and that the information that they were seeking was irrelevant. Further, the fairness of the trial was not compromised and there was no bias demonstrated. He submitted that these jurors having some knowledge about Ms. Kelsey and himself did not mean that the jury was affected to the extent that the entire trial was compromised and that there was no remedy, other than a mistrial. He argued that these jurors’ conduct fell into the less egregious category as discussed below in R. v. Snow, 2004 ONCA 34547, [2004] O.J. No. 4309 (Ont. C.A.), at para. 40.
[44] Although he was not advocating for it, Mr. Singh submitted that it may be appropriate for a Parks-like process be followed such that the remaining 10 jurors be asked to re-swear/reaffirm their duties.
Mr. Doyle
[45] Mr. Doyle submitted that Juror 4 may have tailored her responses having learned that Juror 12 had been discharged. Further, he submitted that by undertaking research, Jurors 1 and 4 displayed wilful misconduct. He noted that they were searching for irrelevant information and it may have been more troublesome had they been searching out information about the accused. Further, he submitted that if Jurors 1 and 4 were willing to breach one of my instructions, then it was possible they could have breached other instructions.
[46] Mr. Doyle also argued that Juror 12 had not been truthful with the court during her inquiry and that she attempted to minimize her misconduct. Therefore, he submitted that it was reasonable to suppose that Juror 12 had learned information about Ms. Graham and had shared this information with the other members of the jury.
[47] He argued that there was actual prejudice to Ms. Graham as Jurors 1 and 4 had breached my instructions and that it was likely that Juror 12 had disseminated information to the other jurors. Therefore, he argued that Ms. Graham’s right to a fair and impartial trial had been breached.
Ms. Kelsey
[48] Ms. Kelsey initially wanted to describe what was on her social media sites; however, I expressed my concern that Ms. Kelsey was making herself a witness. Ms. Kelsey repeatedly indicated that she did not wish to make herself a witness. After an opportunity to discuss the issue with Mr. Singh and Mr. Doyle, Ms. Kelsey requested time to present a statement of agreed facts or some other evidence and the matter was stood down. Ms. Kelsey then subsequently advised that she was ready to proceed and that she no longer wished to file a statement of agreed facts.
[49] Ms. Kelsey agreed with Mr. Doyle’s submission that it was reasonable to infer that Juror 12 shared whatever information she learned with the other members of the jury. She argued that a snowball effect had been created as Juror 1 first researched Ms. Kelsey and Mr. Singh and then discussed what she found with other jurors. Ms. Kelsey argued that by undertaking research, Jurors 1 and 4 directly disobeyed my instruction. She submitted that the information about Mr. Singh and herself did not just fall into the jurors’ hands; rather, they actively searched for information.
[50] Ms. Kelsey also submitted that it was troubling that Jurors 1, 4, and 12 had indicated that they spoke to the other jurors about what they had found, but the other jurors (with the exception of Juror 8) stated that they had not learned anything from any other juror. She also argued that, once Juror 12 conducted her own research and shared the information, the other jurors should have written a note to inform me of this.
[51] Ms. Kelsey argued that there was a reasonable apprehension of bias and the fairness of the trial had been compromised. She submitted that there seemed to be particular interest in herself and noted that she was young, black and female. Mr. Doyle also raised this latter point.
[52] Relying of R. v. Khan, 2001 SCC 86, as discussed below, Ms. Kelsey submitted that there was no corrective measure that could be taken as the Jurors 1 and 4 had actively sought out information about her.
[53] She also submitted that there was no difference in the conduct of Juror 12 and the conduct of Jurors 1 and 4 and that it did not make a difference if the focus of the research was on the lawyers or on an accused. She submitted that the conduct of Jurors 1 and 4 fell into the more egregious category as there was a real danger of bias. By Jurors 1 and 4 looking into her credentials, Ms. Kelsey argued that she was undermined as a lawyer and therefore, Ms. Blake was prejudiced.
LAW AND ANALYSIS
[54] Both defence counsel agreed that the first question to be addressed was whether there was reasonable cause to discharge Juror 1 and/or Juror 4.
[55] My authority to discharge a juror during a trial was found in section 644(1) of the Criminal Code, which provides that:
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.
[56] If either juror was discharged, then I would have no choice other than to declare a mistrial. At that time, a jury with less than 10 jurors was not permitted: see s. 644(2) of the Criminal Code.
[57] In R. v. Snow, the Ontario Court of Appeal explained that concerns arising from jury conduct fall into two categories:
[39] The case law has divided problems arising from inappropriate jury contact into two broad categories. The first category includes conduct that is so serious that it destroys the appearance of justice and fairness of the trial. In cases falling within this first category, there is no need to inquire into whether the accused suffered actual prejudice. As explained by Labrosse J.A. in the leading case, R. v. Cameron (1991), 1991 ONCA 7182, 2 O.R. (3d) 633, 64 C.C.C. (3d) 96 (C.A.), at p. 638 O.R., p. 102 C.C.C., where the allegations of interference with the jury "are so serious as to affect the administration of justice . . . the focus turns upon the justice system". Public confidence in the administration of justice "is equally shaken by the appearance as by the fact of an unfair trial". …
[40] The second category includes cases of jury contact that is inappropriate, but not so egregious as to undermine the appearance of trial fairness. In these cases it is necessary to inquire whether the accused suffered prejudice as a result of the contact. For example, in R v. Labelle (1981), 1981 ONCA 3142, 63 C.C.C. (2d) 403 (Ont. C.A.), the foreman of the jury asked a constable a question regarding evidence at the trial. The constable, after consulting with the Crown, told the jury that the evidence had not been admitted. When the trial judge learned of this incident, he conducted an inquiry and examined the constable under oath. The trial judge allowed the juror to continue in his duties. On appeal, Martin J.A. held that the key question to be determined was whether or not there had been a miscarriage of justice. He concluded at p. 408 C.C.C. "that this irregularity did not result in a miscarriage of justice". Similarly, in R. v. Horne (1987), 1987 ABCA 108, 35 C.C.C. (3d) 427, 78 A.R. 144 (C.A.), the court rule d that the accused suffered no prejudice from a brief conversation in an elevator between three jurors and a key Crown witness. R. v. Gumbly (1996), 1996 NSCA 213, 112 C.C.C. (3d) 61, 155 N.S.R. (2d) 117 (C.A.), involved a conversation about the case, during the trial, between a juror and her husband. The court applied the "real danger" test, asking itself whether the facts showed that there was a real danger of bias on the part of the juror. The court emphasized at p. 82 C.C.C. that "any communications during the course of a trial, between a juror and any person, other than a member of the jury, respecting trial issues, are to be condemned." However, the court concluded that the information placed before it showed neither "incontrovertible" evidence of [page56] an appearance of unfairness, nor that the confidence of the public would be shaken. The appeal was dismissed. See also R. v. Gilson, 1965 ONCA 350, [1965] 2 O.R. 505, [1965] 4 C.C.C. 61 (C.A.) and R. v. Arsenault (1956), 1956 NBCA 498, 115 C.C.C. 400 (N.B.S.C.) for examples of improper jury contact found not to result in any miscarriage of justice requiring a new trial.
[58] In R. v. Pan, 2014 ONSC 4645, Boswell J., at para. 30, articulated the question to be posed when a mistrial is requested:
Is it likely that the exposure of the juror(s) to tainted information could have affected the jury to the point that the entire trial was compromised and no other remedy will do, short of a new trial: see R. v. Pires; R. v. Lising, 2004 BCCA 33, [2004] B.C.J. No. 83 (B.C.C.A.), affirmed (2005), 2005 SCC 66, 201 C.C.C.(3d) 449, 259 D.L.R. (4 th ) 441 (S.C.C.).
[59] The decision to determine if there is reasonable cause to discharge a juror is within the discretion of the trial judge: R. v. Kossyrine, 2017 ONCA 388, at para. 35.
[60] The basis of the defence request for the discharge of Juror 1 and Juror 4 was the responses given by those jurors in their individual inquiries held after Juror 12 was discharged. Although they framed their submissions in the context of their respective requests for a mistrial (i.e. that there was actual prejudice to each of their clients), Mr. Doyle and Ms. Kelsey confirmed that their submissions applied equally to their request for Juror 1 and Juror 4 to be discharged.
[61] I was not satisfied that there was reasonable cause to discharge either Juror 1 or Juror 4.
[62] The record before me only showed that Juror 1 attempted to find out when Mr. Singh and Ms. Kelsey went to school and that although Juror 4 attempted to find out information, she was not successful.
[63] I did not accept that there was no distinction between the conduct of Juror 12 versus the conduct of Jurors 1 and 4. The record before me did not establish that either Juror 1 or Juror 4 conducted or even attempted to research Ms. Graham or Ms. Blake. I was satisfied that Juror 12 had researched Ms. Graham.
[64] Further, the record before me did not establish that either Juror 1 or Juror 4 was anything less than candid with the court. As with all of the jurors, at the beginning of their individual inquiries, each juror was asked to answer my questions honestly and as clearly as possible. In my view, Juror 12 was less than candid with the Court during her inquiry.
[65] Juror 1 and Juror 4 did breach my instruction not to conduct outside research into any of the participants of trial. While the breach was not condoned, I was not satisfied that there was reasonable cause to discharge either Juror 1 or Juror 4. Further, I was not satisfied that this research has resulted in actual prejudice to either Ms. Graham or Ms. Blake.
[66] Mr. Doyle and Ms. Kelsey were essentially asking me to speculate that that Juror 12 shared information with the members of the jury prior to her discharge. In addition to asking me to speculate that Juror 1 and Juror 4 were not being candid with the Court during their individual inquiries, they were also asking that I speculate that Jurors 2, 3, 5, 6, 7, 9,10, and 11 were not being candid when they each denied that they had learned any information from another juror about any of the participants in the trial. In my view, there was absolutely no basis on the record before me to support that highly speculative argument. This was not the same situation as Juror 12, where the record before me did support that she was not being candid with the Court.
[67] In rejecting this argument, I was guided by the case of R. v. Corbett, 1988 SCC 80, [1988] 1 S.C.R. 670, in which Dickson C.J. stated, at para. 39,
In my view, it would be quite wrong to make too much of the risk that the jury might use the evidence for an improper purpose. This line of thinking could seriously undermine the entire jury system. The very strength of the jury is that the ultimate issue of guilt or innocence is determined by a group of ordinary citizens who are not legal specialists and who bring to the legal process a healthy measure of common sense. The jury is, of course, bound to follow the law as it is explained by the trial judge. Jury directions are often long and difficult, but the experience of trial judges is that juries do perform their duty according to the law…
[68] The conduct of Juror 1 and Juror 4, in my view fell into the second category identified in R. v. Snow. Their conduct was not so egregious as to undermine the appearance of a fair trial.
[69] I was not satisfied that there had been actual prejudice to either Ms. Graham or Ms. Blake. I did not accept that Juror 1 and Juror 4’s efforts to look into Ms. Kelsey had undermined her as a lawyer. Also, as Mr. Singh pointed out, it was not just Ms. Kelsey who differed in appearance to Mr. Doyle (who has white skin). Mr. Singh noted that he has brown skin, was Sikh and wore a turban.
[70] Further, I agreed with Mr. Doyle and Mr. Singh that the information that was being sought about Ms. Kelsey and Mr. Singh (when they finished school) was irrelevant. It was not central to the case against either Ms. Graham or Ms. Blake (see R. v. Khan, at para. 75).
[71] Declaring a mistrial is a remedy of last resort. As the Supreme Court of Canada stated in R. v. Khan, at para. 79,
…When the trial judge realizes that an irregularity has occurred, he or she may consider whether to declare a mistrial, but when possible, he or she may also attempt to remedy the error. The decision of whether or not to declare a mistrial falls within the discretion of the judge, who must assess whether there is a real danger that trial fairness has been compromised.
[72] I was not satisfied that there was a real danger that trial fairness had been compromised. A well-informed, reasonable person considering the whole of the circumstances would not perceive the trial as being unfair or appearing to be unfair, see R. v. Khan, para. 73.
[73] As stated by the Supreme Court of Canada in R. v. Khan, at para. 72,
…the accused is not entitled to a perfect trial. He is entitled to a fair trial, but it is inevitable that minor irregularities will occur from time to time. The trial cannot be held to a standard of perfection, provided it remains fair in reality and in appearance. See R. v. Find, 2001 SCC 32, at para. 28; R. v. Carosella, 1997 SCC 402, at para. 74; R. v. G. (S.G.), 1997 SCC 311, at para. 101; R. v. Harrer, 1995 SCC 70, at para. 45.
[74] I was not satisfied that a mistrial was the only remedy to address the conduct of Juror 1 and Juror 4. A mid-trial instruction was the appropriate remedy.
CONCLUSION
[75] For the reasons outlined above, I concluded that there was no reasonable cause to discharge either Juror 1 or Juror 4.
[76] Although each of these Jurors breached my instruction against conducting outside research, the breach did not fall into the category of being so egregious that a mistrial was the only remedy. I was satisfied that a mid-trial instruction was warranted and was the appropriate remedy.
[77] After providing my ruling on September 16, 2019, and prior to the jury returning to the courtroom, I read to counsel my proposed mid-trial instruction. Neither Mr. Singh nor Ms. Kelsey requested any changes to it. Mr. Doyle declined to make any comment as in his view, a mid-trial instruction was not an appropriate remedy.
[78] Below is the instruction which was given to the jury which in my view adequately addressed the conduct of Jurors 1 and 4:
Members of the jury, you will notice that one of your colleagues is no longer with you as a juror in this trial. We will continue the trial with 10 jurors as the law permits us to do.
A judge presiding in a jury trial has the authority to discharge a juror, which brings to an end that juror’s participation in the trial. I have decided to do that in this case in connection with your former colleague.
Please do not speculate about why I have discharged your former colleague. Why I have decided to do so has nothing to do with your decision in this case. Absolutely nothing. We will continue with the trial.
You will recall that I have previously indicated to you that from time to time I may remind you of instructions which I have already given to you. This is one of those times.
I would remind you that you are not lawyers or investigators. You must not investigate, seek out any information, or do any research about the case, the persons involved in it, or the law that applies to it by any means, including the Internet. When I say persons involved in this case, that includes any of the witnesses, the accused, court staff, or any of the lawyers.
Do not consult other people or other sources of information, printed or electronic.
Do not use the Internet or any electronic device in connection with this case in any way. This includes chat rooms, Facebook, MySpace, Twitter, Apps, Linked-In or any other electronic social network. Do not read or post anything about this trial. Do not engage in tweeting or texting about this trial. Do not discuss or read anything about this trial on a blog. Do not discuss this case on e-mail. You must decide the case solely on the evidence you hear in the courtroom.
During the trial, you may discuss the case amongst yourselves but only when all of you are together in the jury room.
You must not, however, come to any conclusions about the case until you have heard all of the evidence, heard the closing addresses of counsel and received my final instructions about the law. Until then, it is your duty to keep an open mind.
I also remind you that after you had been selected to be a juror in this case, you each took an oath or made an affirmation that requires you to listen closely to the evidence that is presented and to decide this case solely on that evidence and the instructions that I give you. You are not to consider any information that is not evidence in this trial. You must follow my instructions.
It is your duty to watch and listen to all of the proceedings, including the closing addresses, the evidence and my instructions. You must listen to and observe these trial proceedings without prejudice, bias or sympathy.
You will recall that on Friday, each of you was told that you may not communicate with each other, or any former member of the jury. As the trial is about to continue, you may communicate with each other when all of you are together. You should not speculate as to why you were not permitted to speak with each other. You are not permitted to communicate with any former member of the jury or any participant in this trial in any way.
It is imperative that you follow these instructions as this is an Order of this Court. All of my instructions are orders. If you do not comply with my instructions, there will be consequences. [Emphasis in the original]
[79] It should be noted, however, that the last paragraph of the instruction was not initially included in the proposed instruction that I read to counsel. It was added prior to the jury returning to the courtroom.
[80] Therefore, the request on behalf of Ms. Graham that Juror 1 and Juror 4 be discharged and that a mistrial be declared was dismissed.
[81] The request on behalf of Ms. Blake that Juror 1 and Juror 4 be discharged and that a mistrial be declared was dismissed.
Kumaranayake J.
Released: June 26, 2020