DATE: 20051223

DOCKET: C39118

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and MICHAEL HAZLETT (Appellant)

BEFORE:

ROSENBERG, JURIANSZ and LAFORME JJ.A.

COUNSEL:

Michael Hazlett

In Person

Mara Greene

Duty Counsel

Joseph Perfetto

for the respondent

HEARD:

December 19, 2005

On appeal from conviction by Justice Paul F. Lalonde of the Superior Court of Justice, sitting with a jury, dated October 12, 2002.

E N D O R S E M E N T

[1] At the conclusion of argument in this appeal we indicated that the appeal from conviction was allowed, the conviction set aside, a new trial ordered and a stay of proceedings entered. We also indicated that we would provide brief reasons for that decision. These are our reasons.

[2] The appellant was charged with break and enter and commit mischief. Following a trial before Lalonde J. and a jury the appellant was convicted of the included offence of mischief. The appellant was not represented by counsel either at the preliminary inquiry or at trial. In our view, there were several errors in the proceedings that required that the jury’s verdict be set aside.

Jury Selection

[3] Prior to formal jury selection, the trial judge, apparently in exercise of his power under s. 632 of the Criminal Code, excused a number of potential jurors. Some of the decisions by the trial judge were unobjectionable. For example, he excused people who had some connection to the appellant. However, over the objection of the appellant, the trial judge excused any person whose home had been broken into. The trial judge enjoys a “limited preliminary power to excuse prospective jurors”: R. v. Find (2001), 2001 SCC 32, 154 C.C.C. (3d) 97 (S.C.C.) at para. 22. However, during this pre-screening phase the trial judge is not entitled to excuse jurors without the consent of the parties on controversial questions of partiality. In Find at para. 60, the court held that “while widespread victimization may be a factor to be considered, standing alone it fails to establish widespread bias that might lead jurors to discharge their task in a prejudicial and unfair manner.” In our view, the trial judge erred in principle in the manner in which he exercised the power under s. 632.

[4] Shortly after the appellant was given in charge to the jury, Crown counsel learned that one of the jurors worked with the spouse of another Crown counsel. The appellant and the Crown agreed that this juror should be excused. The trial judge indicated that he would excuse the juror and proceed with a jury of eleven members. The appellant objected and stated that he wanted a jury of twelve. The trial judge dismissed the appellant’s request, stating that the law was clear that the trial can proceed with eleven jurors. The trial judge did not consider, and Crown counsel (not Mr. Perfetto) did not draw to his attention, s. 644(1.1) of the Criminal Code. This provision permits a judge to select another juror to take the place of a juror who cannot continue to act, if the jury has not yet begun to hear evidence. Section 644(1.1) is worded in permissive terms and a judge has the discretion not to select a replacement juror. However, the trial judge must exercise that discretion on proper grounds. As was said in R. v. Basarabas (1982), 1982 216 (SCC), 2 C.C.C. (3d) 257 (S.C.C.) at 265: “An accused should not be lightly deprived of his or her right to be tried by a jury of 12 persons.” The trial judge in this case did not give any consideration to the question and so it cannot be said that he properly exercised his discretion.

[5] The appellant’s wife testified and provided an alibi for the appellant. This alibi had not been disclosed to the authorities before the witness testified. The trial judge instructed the jury that “if an alibi has not been disclosed at a sufficiently early time to permit its investigation by police, the failure of early disclosure is a factor for you to consider in assessing the weight to be assigned to Suzanne Hazlett’s evidence.” As we have said, the appellant was not represented by counsel at trial and the trial judge did not inform the appellant that he intended to give this instruction to the jury. In the result, the appellant had no opportunity to draw to the trial judge’s attention that in fact he had attempted to call his wife at the preliminary inquiry but had been persuaded not to by the presiding judge. We attach no blame to the preliminary inquiry judge who had no way of knowing why the appellant wanted to call his wife. In our view, given what transpired at the preliminary inquiry, it is doubtful that the impugned direction was appropriate. At the very least, however, the trial judge should have informed the appellant that he intended to give this special instruction and thus provide the appellant with an opportunity to make submissions on the issue.

[6] We are of the view that had the trial judge been aware of the true state of affairs he most likely would not have given the impugned instruction. This was a case turning on credibility and we cannot say that the circumstances in which the impugned instruction was given, did not affect the fairness of the trial.

[7] The appellant also objected to the recharge to the jury. The circumstances are unusual. After the charge to the jury, Crown counsel for the first time raised the question of leaving mischief as an included offence. After approximately an hour and a half, the trial judge in a very brief recharge directed the jury accordingly. There is no doubt that mischief was an included offence and leaving the included offence may well have inured to the benefit of the appellant by providing the jury with an alternative verdict. See R. v. Houghton (1994), 1994 73 (SCC), 93 C.C.C. (3d) 99 (S.C.C.). Regrettably, the manner in which the issue was dealt with was unsatisfactory. The recharge was very brief, simply informing the jury of a third option. The trial judge did not even in a cursory form, review the elements of the offence. Further, he did not amend the already incorrect verdict sheet which referred to break and enter and commit theft. Standing alone, this ground of appeal would not require a new trial, but it contributes to the unsatisfactory nature of this trial.

[8] While the appellant raised several other grounds of appeal, in our view, these errors are sufficiently serious to require that the verdict be set aside. The issue then is the appropriate remedy. This matter dates back to 2000 and involves the appellant allegedly throwing a bucket of water on the floor of the complainants’ home after the complainants’ above-ground pool broke and flooded (not for the first time) the appellant’s neighbouring business. By their verdict, the jury has negatived the most serious allegation, that the appellant broke into the complainants’ home. With great candour and fairness, Mr. Perfetto stated that should the appeal be allowed, he was not seriously opposed to the court staying the proceedings in the circumstances. We think that is the just result in the unusual circumstances of this case.

[9] Accordingly, the appeal is allowed, the conviction set aside, a new trial ordered and a stay of proceedings entered.

[10] We wish to thank both Ms. Greene who acted as duty counsel and Mr. Perfetto for their assistance in this appeal.

Signed: “M. Rosenberg J.A.”

“R.G. Juriansz J.A.”

“H.S. LaForme J.A.”