Her Majesty the Queen v. Kossyrine

[Indexed as: R. v. Kossyrine]

Ontario Reports

Court of Appeal for Ontario, Laskin, Watt and Hourigan JJ.A.

May 15, 2017

138 O.R. (3d) 91 | 2017 ONCA 388

Case Summary

Criminal law — Trial — Jury trial — Challenge for cause

Trial judge permitting challenges for cause based on pre-trial publicity and telling counsel that he intended to use static triers. Defence counsel not objecting and making it clear that he wanted all prospective jurors excluded from courtroom during challenge for cause. Jury not improperly constituted by reason of defence counsel's failure to expressly ask for static triers or to make formal application under s. 640(2.1) of Code to have prospective jurors excluded. Criminal Code, R.S.C. 1985, c. C-46, s. 640(2.1).

Criminal law — Trial — Jury trial — Discharge of juror

Trial judge discharging elderly juror under s. 644(1) of Code after Crown's opening address because juror was on medication for severe pain, had significant hearing impairment and did not appear to have listened to or understood Crown's opening address. Trial judge not discriminating against juror on basis of disability. Trial judge having reasonable cause to discharge juror. Discharge not depriving accused of fair trial. Criminal Code, R.S.C. 1985, c. C-46, s. 644(1).

Facts

The accused was convicted of first degree murder. The accused was alleged to be the middle man between the deceased's nephew, who planned and arranged the murder, and the hired killer who carried it out. The nephew and the killer had already been convicted before the accused was tried and the killer's trial had been widely publicized. The trial judge permitted challenges for cause based on pre-trial publicity, and told counsel that he intended to use static triers. Counsel for an accused may ask for static triers, which means that the same two triers determine all of the challenge for cause applications until all 12 jurors are selected. If the accused does not ask for static triers, then rotating triers are used. The accused may make an application to have jurors, sworn and unsworn, excluded from the courtroom while challenges for cause are determined and it is a matter of the judge's discretion whether to grant that application. The accused wanted to have prospective jurors excluded from the courtroom, but did not make a formal application under s. 640(2.1) of the Criminal Code and did not specifically request static triers. After the judge announced that he intended to use static triers, the accused did not object. After the Crown's opening address, the trial judge discharged an elderly juror under s. 644(1) of the Code. The juror had a broken back, wore a body brace, walked with a walker, was taking pain medication for severe pain, had a significant hearing impairment, and did not appear to have listened to or understood the Crown's opening address. The accused appealed his conviction.

Decision

Held: The appeal should be dismissed.

The jury was not improperly constituted by reason of the accused's failure to make a formal application under s. 640(2.1) to exclude prospective jurors during the challenges for cause or to expressly ask for static triers. Defence counsel got what he wanted and, in substance if not in form, made the requisite application under s. 640(2.1). Alternatively, the absence of a formal application under s. 640(2.1) was a procedural regularity within the meaning of s. 686(1)(b)(iv) of the Code.

The trial judge did not discriminate against the juror on the basis of physical disability by discharging him. In any event, the accused had no standing to assert a claim of discrimination on the part of the juror. Despite the juror's desire to serve despite his broken back, the trial judge had reasonable cause to discharge the juror, and the discharge did not deprive the accused of a fair trial.

Statutes Referred To

• Canadian Charter of Rights and Freedoms
• Criminal Code, R.S.C. 1985, c. C-46, ss. 627, 640(2), (2.1), (2.2), 644(1), 686(1)(b)(iv)
• Juries Act, R.S.O. 1990, c. J.3, s. 4(a)

Counsel

Vincenzo Rondinelli, for appellant.

Michael Bernstein, for respondent.

Judgment

The judgment of the court was delivered by

LASKIN J.A.:

A. Introduction

[1] Glen Davis was a successful businessman and a passionate conservationist, who gave generously to the World Wildlife Fund and other environmental causes. In May 2007, Davis was murdered -- shot and killed in an underground parking garage in Toronto. Davis' nephew, Marshall Ross, orchestrated the murder. Ross' friend, the appellant Dimitri Kossyrine, acted as the middle man, and hired a close friend of his, Eugene Vorobiov, to carry out the killing.

[2] Ross pleaded guilty to first degree murder. Vorobiov was separately tried and convicted of first degree murder. Kossyrine, too, was charged with first degree murder. In November 2012, after a six-week trial before a judge and jury, he was found guilty and sentenced to life imprisonment.

[3] Kossyrine raises two grounds of appeal. Both concern the composition of the jury. First, he argues that the jury was improperly constituted because the trial judge used static triers to decide the challenges for cause. Second, he argues that the trial judge erred by discharging one juror -- juror 11 -- without reasonable cause. On either ground, Kossyrine asks that his conviction for first degree murder be set aside and a new trial ordered.

[4] For the reasons that follow, I would not give effect to either ground of appeal. I would therefore dismiss Kossyrine's appeal.

B. Brief Background

(1) The unsuccessful and successful attempts on Davis' life

[5] Ross and Davis were close. Over the years, Davis loaned about $2 million to Ross' construction company. But Ross' business did poorly and he did not repay any of the loans. He mistakenly believed that he would inherit his uncle's fortune, and decided to kill him to speed up receipt of his inheritance.

[6] Ross' first attempt was unsuccessful. In 2005, Ross asked Kossyrine to recruit someone to kill Davis. Kossyrine hired a man named Cawley, whom he knew from work, and paid him $46,000 in cash to murder Davis. Cawley enlisted a cousin to carry out the murder. The cousin used a baseball bat instead of a gun and tried to beat Davis to death. During the attack, nearby construction workers heard Davis' cries for help and intervened. Cawley and his cousin fled without being identified. Davis' arm was broken in the beating and 100 stitches were needed to sew up his head.

[7] After this unsuccessful attempt on Davis' life, the financial condition of Ross' construction company continued to deteriorate. In mid-May 2007, two days before the murder, Ross met with Davis and Davis agreed to loan Ross' company more money; another $350,000. Davis, however, told Ross he wanted all of his $2 million in loans repaid. After this meeting, Kossyrine recruited Vorobiov to kill Davis, and Vorobiov succeeded in doing so.

[8] The beating and murder of Davis were unsolved for several years. However, in 2008, Cawley came forward and told the police about the beating and his involvement. After a further police investigation Ross, Vorobiov and Kossyrine were charged with first degree murder. Ross pleaded guilty, and Vorobiov was separately tried and convicted.

(2) The Crown's case against Kossyrine

[9] The Crown mounted a powerful case against Kossyrine. The Crown's evidence included the following:

• the evidence of Cawley and another man named Smith. Smith was the getaway driver for Vorobiov, and pleaded guilty to being an accessory after the fact for helping Vorobiov flee the scene of the murder;
• evidence of the close business and personal relationship between Ross and Kossyrine;
• phone records;
• wiretap intercepts of incriminating conversations between Ross and Kossyrine; and
• evidence of Kossyrine's conduct after the murder, which included his lies to the police and his giving Vorobiov $10,000 to flee Canada for Ukraine.

[10] Kossyrine did not testify. His counsel argued that his client had no connection to the murder and the Crown's witnesses had lied in their testimony. The jury found Kossyrine guilty of first degree murder.

C. The Issues on Appeal

(1) Was the jury improperly constituted because the trial judge used static triers to decide the challenges for cause?

(a) Rotating and static triers to decide challenges for cause

[11] Davis' murder generated a great deal of publicity before Kossyrine's trial. This publicity raised a concern about the impartiality of prospective jurors. Both the Crown and the defence asked to challenge prospective jurors for cause based on pre-trial publicity. The trial judge agreed that they could do so.

[12] Before 2008, challenges for cause to assess the impartiality of prospective jurors in a criminal trial were decided by "rotating" triers. The two last jurors sworn -- or if no juror had been sworn, two persons appointed by the court -- decided whether the next prospective juror was impartial.

[13] In 2008, Parliament amended s. 640(2) of the Criminal Code, R.S.C. 1985, c. C-46 to provide for a second method of deciding challenges for cause -- by "static" triers. Under this amendment, two triers appointed by the trial judge decide all challenges for cause. Unlike rotating triers, static triers do not become members of the jury that decides the case.

[14] Subsections 640(2), (2.1) and (2.2) of the Code now provide:

640(2) If the ground of a challenge is one that is not mentioned in subsection (1) and no order has been made under subsection (2.1), the two jurors who were last sworn -- or, if no jurors have been sworn, two persons present who are appointed by the court for the purpose -- shall be sworn to determine whether the ground of challenge is true.

(2.1) If the challenge is for cause and if the ground of the challenge is one that is not mentioned in subsection (1), on the application of the accused, the court may order the exclusion of all jurors -- sworn and unsworn -- from the court room until it is determined whether the ground of challenge is true, if the court is of the opinion that such an order is necessary to preserve the impartiality of the jurors.

(2.2) If an order is made under subsection (2.1), two unsworn jurors, who are then exempt from the order, or two persons present who are appointed by the court for that purpose, shall be sworn to determine whether the ground of challenge is true. Those persons so appointed shall exercise their duties until 12 jurors -- or 13 or 14 jurors, as the case may be, if the judge makes an order under subsection 631(2.2) -- and any alternate jurors are sworn.

[15] Subsection 640(2) provides for rotating triers. Subsections 640(2.1) and (2.2) provide for static triers. The advantages and disadvantages of each method have been extensively discussed in R. v. Noureddine (2015), 128 O.R. (3d) 23, 2015 ONCA 770 and R. v. Grant, 2016 ONCA 639, 342 C.C.C. (3d) 514. That discussion need not be repeated here.

[16] The accused may choose which method to use. An accused who wants static triers makes an application for an order under s. 640(2.1) to exclude all jurors from the courtroom during the challenges for cause. If the trial judge makes the order, the trial judge then appoints static triers under s. 640(2.2). If the accused does not ask for static triers, rotating triers are used. Recently in Grant, decided after the trial in this case, our court resolved a debate among trial judges and held that, even with rotating triers, a trial judge has discretion to exclude unsworn jurors from the courtroom during challenges for cause.

(b) This case

[17] Kossyrine did not make a formal application under s. 640(2.1) of the Code to exclude all jurors from the courtroom, and he did not specifically request static triers. He submits that the trial judge's use of static triers to decide the challenges for cause resulted in an improperly constituted jury, and his conviction must therefore be quashed. The Crown submits that to give effect to Kossyrine's position would elevate form over substance. Kossyrine wanted static triers, and in substance must be taken to have made an application under s. 640(2.1). I agree with the Crown's submission.

[18] The trial judge in this case was also the trial judge in Noureddine and Grant, and he had a strong preference for using static triers, which he viewed as "more efficient". After agreeing to allow challenges for cause based on the effect of pre-trial publicity on the impartiality of the jurors, he told counsel he intended to use static triers.

[19] Defence counsel did not object to the use of static triers or raise the possibility of using rotating triers. Indeed, it is evident from the dialogue between the trial judge and counsel that, because of the concern about pre-trial publicity, both the Crown and the defence wanted all the prospective jurors out of the courtroom during the challenges for cause. Excluding the prospective jurors and using static triers avoided the possibility that a juror's attitude could be tainted by an answer given by another prospective juror.

[20] Defence counsel's concern was that the static triers be properly vetted. The trial judge took defence counsel's concern into account. He explained that he would vet each proposed static trier and give defence counsel a chance to object to any person chosen. The trial judge added, "[y]eah, usually I'll accede to your opposition".

[21] Defence counsel expressed satisfaction with the trial judge's proposed approach. He said, "[a]ll right. Sounds like it'll work", and later, "[i]n principle it seems like it would work". The trial judge then identified two static triers and, after vetting them, found that they were suitable. Both Crown and defence counsel also approved them to decide the challenges for cause.

(c) Analysis

[22] Now in this court Kossyrine contends that because he did not make a formal application under s. 640(2.1), and did not expressly ask for static triers, the jury was improperly constituted. In three cases -- Noureddine, Grant and R. v. Mansingh, 2017 ONCA 68 -- this court has grappled with the question whether a trial judge's use of static triers to decide challenges for cause in the absence of an accused's formal application under s. 640(2.1) of the Code results in an improperly constituted jury. In all three cases, the accused did not make a formal application under s. 640(2.1) to exclude all jurors from the courtroom. In Noureddine, we held that the jury was improperly constituted. In Grant and Mansingh, we held that the jury was properly constituted. The result in each case was driven by the position defence counsel took at trial.

[23] In Noureddine, defence counsel not only did not make an application under s. 640(2.1) of the Code, she repeatedly insisted that rotating triers be used and objected to the use of static triers. Despite her objection, the trial judge ordered static triers. Doherty J.A. held that the trial judge's order deprived the accused of his statutory right to choose the method of deciding challenges for cause. Doherty J.A. also held that none of the curative provisions in the Code applied to the trial judge's error. Thus, he held that the jury was improperly constituted and ordered a new trial.

[24] In Grant, defence counsel first asked for rotating triers but also asked that the trial judge exercise his discretion to exclude unsworn jurors from the courtroom during the challenges. However, defence counsel gave the trial judge no reason to exercise his discretion in favour of exclusion. After further discussion with counsel, the trial judge gave defence a choice: rotating triers with unsworn jurors in the courtroom, or static triers with the jury panel out of the courtroom. Faced with that choice, defence counsel said, "[w]e'll take the static triers". This court held, at para. 51, that in substance, if not in form, the defence had made an application under s. 640(2.1), and so the jury was properly constituted:

The defence did not make a formal application under s. 640(2.1) to have the sworn and unsworn panels excluded, and to have the trial judge appoint static triers. But I would treat their decision to choose static triers as, in effect, an application to exclude both unsworn and sworn jurors. Otherwise form would supersede substance. Had the trial judge asked one additional question, "Are you then applying for an order under s. 640(2.1)", defence counsel would undoubtedly have answered "yes".

[25] Mansingh confirmed the importance of looking at the substance of the defence's position, not its form. There, the trial judge told counsel his practice was to use static triers, but invited counsel to make submissions on rotating triers. Defence counsel said that he mainly wanted the panel excluded and added [at para. 8], "I actually like static triers." He and Crown counsel then discussed the steps to vet the static triers appointed by the trial judge.

[26] On appeal, Mansingh argued that, as he had not made a formal application under s. 640(2.1), the use of static triers resulted in an improperly constituted jury. This court rejected that argument and, as in Grant, emphasized that the defence got what it wanted and, in substance, had made the necessary application.

[27] At para. 12 of its reasons, the panel wrote:

This case is distinguishable from Noureddine and is governed by R. v. Grant, 2016 ONCA 639, at paras. 50-51. At trial, defence counsel made it clear that he wanted prospective jurors excluded during the challenge process. He was happy to use properly vetted static triers as long as the panel was excluded. As stated in Grant, substance must supersede form. Counsel got what he wanted and, in substance, if not in form, made the requisite application under s. 640(2.1). This ground fails.

[28] In the case before us, as in Mansingh, Kossyrine wanted static triers. Unlike in Noureddine, Kossyrine did not ask for rotating triers or object to the trial judge's practice of using static triers. His sole concern was that the static triers the trial judge identified be properly vetted. This court's conclusion in Mansingh is entirely appropriate in this case: "[c]ounsel got what he wanted and, in substance, if not in form, made the requisite application under s. 640(2.1)". The jury in this case was thus properly constituted.

[29] Although what I have said is sufficient to decide this ground of appeal, there is another possible basis to uphold the trial judge's use of static triers: by relying on s. 686(1)(b)(iv) of the Code and treating the absence of a formal application under s. 640(2.1) as a "procedural irregularity". Subsection 686(1)(b)(iv) states:

686(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal

(b) may dismiss the appeal where

(iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby.

[30] In an appropriate case, treating the absence of a defence application under s. 640(2.1) as a procedural irregularity that would not affect the validity of the conviction seems to have merit. In Noureddine, Doherty J.A. refers to this possibility, at para. 57 of his reasons:

It may be that s. 686(1)(b)(iv) could be applied if an accused had agreed to the use of static triers, but had failed to bring the required motion under s. 640(2.1). An accused's willingness to use static triers may be enough to render the court properly constituted during the selection process. The failure to bring the appropriate motion may be characterized as a procedural irregularity potentially curable under s. 686(1)(b)(iv).

[31] In the case before us, the Crown also suggests that we could rely on s. 686(1)(b)(iv). As the issue was not fully canvassed, it would be unwise to decide it on this appeal. The issue is better left to a future appeal where it is raised and fully argued by the parties.

[32] I would not give effect to this ground of appeal.

(2) Did the trial judge err by discharging juror 11 without reasonable cause?

(a) Discharge for reasonable cause

[33] Under s. 644(1) of the Code, a trial judge may discharge a juror because of illness or for "other reasonable cause":

644(1) 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.

[34] Here, over the defence's objection, the trial judge discharged juror 11 after the Crown's opening address to the jury. The trial judge concluded that reasonable cause existed to discharge the juror. He gave brief reasons:

I find that [juror 11] has serious problems which impact on his ability to concentrate and understand the evidence. These include his broken back, his being in a body brace, and is taking medication to control his pain. He is using a walker. He also has a significant hearing impairment. In the end, I find there is reasonable cause to discharge [juror 11] and replace him with the alternate juror. We'll proceed in that fashion.

[35] Kossyrine submits that the trial judge's ruling deprived him of a fair trial because juror 11 was discharged without reasonable cause. I do not agree with this submission. A trial judge has broad discretion under s. 644(1) and the trial judge in this case exercised this discretion reasonably. Moreover, the discharge of juror 11 did not deprive Kossyrine of a fair trial, as the trial judge replaced him with another juror who passed the challenge for cause and who Kossyrine chose to sit on the jury.

(b) The proceedings concerning juror 11

[36] Before the formal jury selection began, the trial judge excused several potential jurors who had valid personal reasons for not serving. During this initial screening, juror 11 came before the trial judge. Through questioning, the trial judge learned that juror 11 was 70 years old, was a retired biology professor, and walked with a walker because he had broken his back. The trial judge was inclined to excuse juror 11 due to his injury, but the juror said he did not want to be excused. The trial judge allowed him to remain in the jury pool.

[37] A few days later, juror 11 came before the challenge for cause triers and both triers deemed him acceptable. Both the Crown and the defence also deemed him acceptable and he became a member of the jury.

[38] Two days later, after the Crown finished his opening address to the jury, the trial judge again spoke to juror 11. During the discussion, the trial judge learned that juror 11 had a hearing problem, that he used a hearing aid but had not yet activated it, and that he was on painkillers for his back injury. Still, juror 11 said he would like to sit on the jury, though he was "not insisting".

[39] The trial judge then asked both counsel whether they had any concerns about juror 11 remaining on the jury. Crown counsel (Mr. Goody) said that juror 11 did not seem to be listening to or understanding his opening address.

Mr. Goody: Well, my lord, based on concerns that we commenced to have after he was selected, this side of the room was watching [juror 11] yesterday as closely as we could during the opening address . . . From where I was standing it did not seem to me that he was listening, or paying particular attention to what I was saying.

The Court: That's true, I observed that as well.

The Court: Well, in addition obviously he's in probably constant pain. He's tolerating it to some extent, but he's on medication to control the pain and that likely will cause doziness, or impairment of the cognitive of functions, that's one of the difficulties.

Mr. Goody: Yes, and it crossed my mind that he may have been somewhat discomforted just by his physical situation. I could also help but notice that on the two occasions when the jury was asked to retire, both at the break and after the conclusion --

The Court: He didn't understand what I said in plain English --

Mr. Goody: He didn't seem to understand what it was that was being asked of him. So, I mean, there is an obvious mobility issue, but I don't think that's where we're necessarily heading in these remarks. It just seem to me that he was having some comprehension problems, which isn't to --

The Court: Well. The mobility issue impacts upon his --

Mr. Goody: Yes.

The Court: On his -- obviously his physical state and whether or not he's able to follow information.

[40] Eventually, Crown counsel took the position that juror 11 should be discharged under s. 644(1) because he was unable to competently fulfill his obligations as a juror. Defence counsel opposed the discharge. The trial judge then discharged juror 11.

(c) Analysis

[41] In his factum, Kossyrine argued that juror 11 was a victim of "disability-based discrimination". He pointed to the statutory provisions showing that a person with a physical disability may sit on a jury and that trial judges may now accommodate jurors with physical disabilities. Section 4(a) of the Juries Act, R.S.O. 1990, c. J.3 provides that although physical disability may be a ground for ineligibility, it is not an absolute bar to serving on a jury. Under s. 627 of the Code, added in 1998, a judge may permit a juror with a physical disability who is otherwise qualified to serve as a juror "to have technical, personal, interpretive or other support services".

[42] The participation of jurors with physical disabilities on Canadian juries is important. And s. 627 of the Code is a laudable amendment, which significantly promotes participation by those with physical disabilities. Still, on my reading of the record, the trial judge did not discriminate against juror 11 because of his physical disability. The trial judge was concerned that juror 11 was unable to perform the duties of a juror.

[43] As important, Kossyrine, the accused, cannot assert the rights of a juror. Both in R. v. Gayle (2001), 54 O.R (3d) 36 and R. v. Church of Scientology of Toronto (1997), 33 O.R. (3d) 65, this court affirmed that an accused has no standing to assert the Canadian Charter of Rights and Freedoms rights of individuals deprived of their right to serve on a jury. Even if juror 11 had a claim for being discriminated against because of his physical disability, that is not a claim Kossyrine can maintain.

[44] Instead, to succeed on his argument concerning juror 11's discharge, Kossyrine must show that the trial judge exercised his discretion unreasonably under s. 644(1) of the Code and by doing so deprived him of a fair trial. Kossyrine cannot do so.

[45] To show that the trial judge exercised his discretion unreasonably, Kossyrine relies on the following considerations:

• juror 11 wanted to continue serving on the jury and expressed no reservation about his physical ability to do so;
• defence counsel objected to juror 11's discharge;
• the trial judge had no evidence of what painkillers juror 11 was taking, or of the side effects of those painkillers, or of whether the side effects affected his ability to concentrate during the trial;
• the trial judge made no inquiries to find out whether other jurors were taking medication; and
• the trial judge did not consider his authority to accommodate juror 11's physical disability under s. 627.

[46] Kossyrine contends that the unreasonable discharge of juror 11 affected his fair trial rights because juror 11 was acceptable to the triers and initially to both counsel.

[47] I cannot accede to Kossyrine's contention. Juror 11's wishes and defence counsel's objection may be relevant considerations, but the trial judge was not bound by either. The trial judge had to make his own determination whether juror 11 was capable of serving as a juror -- capable of listening to and concentrating on the evidence, and of comprehending and analyzing it.

[48] The trial judge conducted his inquiries of juror 11 in open court as this court mandated in R. v. Giroux, 207 C.C.C. (3d) 512. He thus had to be sensitive to the extent of his inquiries into juror 11's personal circumstances, such as the type of painkillers juror 11 was using and their effect on him. Also, inquiries of other jurors would not only have been inappropriate, they would have been irrelevant to juror 11's capability to serve.

[49] Finally, juror 11's situation was not really about whether he could be accommodated, and so s. 627 had no bearing on the trial judge's decision. What rightly mattered to the trial judge was whether juror 11 was capable of carrying out his duties as a juror.

[50] A trial judge has broad discretion under s. 644(1). The breadth of this discretion is reflected in the phrase "other reasonable cause" and the case law interpreting it. "Other reasonable cause" means any cause that could reasonably affect a juror's ability to discharge the duties of a juror in a competent and impartial manner: see R. v. Holcomb, 12 C.C.C. (2d) 417, affd , 15 C.C.C. (2d) 239 and R. v. Hahn, 62 B.C.A.C. 6.

[51] Also, in exercising the discretion under s. 644(1), 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. For these reasons, a trial judge's exercise of discretion under s. 644(1) is entitled to significant deference from an appellate court.

[52] In this case, the trial judge had ample reason to discharge juror 11. The following considerations demonstrate the trial judge had reasonable cause to exercise his discretion under s. 644(1):

• the trial was projected to last two months (and in fact lasted six weeks);
• during juror 11's first appearance before the trial judge -- before the formal jury selection proceedings -- juror 11 did not hear the trial judge's questions, and the questions had to be repeated;
• following the Crown's opening, juror 11 did not appear to hear the trial judge's questions, which prompted the trial judge to inquire into juror 11's use of a hearing aid;
• juror 11 acknowledged he was taking one or two painkillers every four to six hours for "severe pain";
• the trial judge observed that juror 11 did not seem to understand his instructions or be able to follow them; and
• juror 11 did not seem to be following or comprehending the Crown's opening address.

[53] These considerations afforded the trial judge a sound basis to conclude that he had reasonable cause to discharge juror 11.

[54] And the discharge of juror 11 did not deprive Kossyrine of a fair trial. Kossyrine was not entitled to have a juror with a physical disability on the jury. He was entitled to an impartial and representative jury. He does not suggest that the discharge of juror 11 affected the jury's impartiality or representativeness. Nor could he. Juror 11 was replaced by an alternate juror deemed acceptable by the static triers and counsel.

[55] I would not give effect to this ground of appeal.

D. Conclusion

[56] The trial judge's use of static triers did not result in an improperly constituted jury. Nor did the trial judge's discharge of juror 11 deprive Kossyrine of a fair trial. I would therefore dismiss the appeal.

Appeal dismissed.