Court File and Parties

Court File No.: Toronto 4811 998 12 10001605 00

Date: 2012-07-05

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Louis Gregory Triffon

Before: Justice J. W. Bovard

Heard on: February 8, 2012

Reasons for Judgment released on: July 5, 2012

Counsel:

Ms. R. Weinberg for the Crown

Mr. E. Peterson for the accused Louis Gregory Triffon

Reasons for Judgment

Bovard J.:

Introduction

[1] These are reasons for judgment after the trial of Louis Gregory Triffon.

[2] Mr. Triffon is charged with attempting to "obstruct or pervert or defeat the course of justice in a judicial proceeding by threatening to use his vote, position and influence as a jury member to cause a 'hung jury' irrespective of the evidence at trial."

Background

[3] On March 21, 2011 the Toronto Sheriff's office issued a Summons to Mr. Triffon for the purpose of jury selection. Mr. Triffon did not want to serve on a jury and demanded to be excused. In an email to the Ministry of the Attorney General he asserted that if he were required to serve on a jury he would deliberately cast his vote in such a way as to prevent a unanimous verdict and that he would counsel other jury members to do the same thing.

[4] Mr. Triffon also stated his intentions in a document entitled "How to Get Even With the Ontario Government and Its Stalinist Pig Court", which he sent to Sam Pazzano, a reporter for the Toronto Sun newspaper. He told Mr. Pazzano that he would hand it out at the court house when he reported for jury duty.

[5] In addition, he sent a letter to the Sheriff's office that stated his intentions and added that he was a racist and generally would be an unfit juror.

[6] On the day that Mr. Triffon's jury panel was convened he appeared before Mr. Justice McMahon and expressed his intentions to the court. Justice McMahon excused him from jury duty.

Issue

[7] The issue is whether or not Mr. Triffon's words and actions constituted an attempt to obstruct justice in a judicial proceeding.

The Evidence

[8] All of the evidence was introduced by way of an Agreed Statement of Facts, which is Exhibit 1. It states the following.

[9] On March 21, 2011, the Toronto Sheriff's office issued a Summons to Mr. Triffon to attend for jury duty on May 9, 2011 at the Superior Court of Justice.

[10] On April 4, 2011, Mr. Triffon sent a letter to the Toronto Sun which contained a circular entitled "How to Get Even With the Ontario Government and Its Stalinist Pig Court." He declared in the letter that he would hand out the circular at the Superior Court when he reported for jury duty. The Toronto Sun did not publish the letter or the circular.

[11] The circular states that it only takes one dissenting vote to "hang" a jury in a criminal trial and that this would result in a mistrial – "The whole trial is down the drain." The circular states that this is what he intends to do "and I hope you do it, too."

[12] Mr. Triffon declares in the circular that he has a "score to settle with the Ontario Stalinist Pig Court". He speculates that maybe the other jurors have a grudge, too. He asks: "The courts? The police? Elected officials? Bureaucrats? Did they ever make you so mad you wanted to get even? This is your chance, and you'll never have another chance like this as long as you live."

[13] He tells prospective jurors that they can "vote any way you want and they can't do anything to you for it." He states that "once you're on the jury, it's the one time in your life that you'll have the evil Stalinist bastards by the throat. Stick it to them! HANG THE JURY!"

[14] On April 25, 2011, Mr. Triffon sent an email to the Ministry of the Attorney General in which he stated that he had a grudge against the court system dating back 20 years and that he thought that the courts and the judges were rotten. He declared that he was a "racist and unfit for jury service."

[15] He demanded that the Ministry cancel his jury duty or he would "hang the jury if selected" and "encourage others to hang the jury as well."

[16] Alternatively, he requested to be "taken to a judge upon arrival at University Ave. courthouse" because he had a letter from his doctor to show the court.

[17] Dr. Amy Freedman wrote a letter stating that Mr. Triffon has been her patient since 2003. She states that Mr. Triffon is a "self-proclaimed racist" and, consequently, he thinks that he would not be fit to be a member of a jury. He is "generally hostile to government, the police and the court system." He told Dr. Freedman that he "would deliberately vote in such a way as to hang a jury." Dr. Freedman recommends that he be excused from jury duty.

[18] On April 27, 2011 Mr. Triffon sent a letter to the Sheriff's office which stated that should he be selected to be on a jury he would use his vote to hang the jury "regardless of the nature of the trial".

[19] He wrote that he wanted to "punish the court" for something that happened to him 20 years ago in the Ontario Provincial Court. He claimed that his Charter rights were ignored by Judge Robert Dnieper.

[20] He stated that if he were exposed to other panellists he would encourage them to hang the jury if they had ever had a "grievance against any part of the provincial government". He said that Ontario courts are not honest courts and that "no jury should ever deliver a verdict."

[21] He declared that he was a racist and that he did not like certain ethnic groups. He referred to a letter from the Toronto Public Library dated August 30, 2007, in which the library banned him for eight weeks for unacceptable behaviour.

[22] He concluded the letter by saying that he was telling the Sheriff these things "in complete honesty because you are entitled to know in advance that I absolutely cannot and will not be a 'fair' juror." He insists that he "be disapproved as a juror."

[23] On May 9, 2011, Mr. Triffon appeared before Mr. Justice McMahon of the Ontario Superior Court of Justice to see if he should be excused as a juror. It is not clear how he got before Justice McMahon. The Crown told Justice McMahon that on "May 6th, a Toronto Sun Reporter advised the Court Liaison Officer" that he had received Mr. Triffon's declaration. The Crown said that it had the letter "that apparently came through the Toronto Sun" (Pages 10, 11 of the transcript of May 9, 2011 contained in the Agreed Statement of Facts).

[24] The Crown also advised the court that as a result of the letters that Mr. Triffon wrote, the police arrested him that morning when he reported for jury duty.

[25] I infer from Justice McMahon's comments in the transcript about having to continue a murder trial immediately after dealing with Mr. Triffon that he was not the judge that was scheduled to preside over the selection of a jury chosen from the panel of which Mr. Triffon was a member (Pages 2, 20 of the transcript of May 9, 2011). It appears that the police took steps that resulted in Mr. Triffon's appearance before Justice McMahon to be dealt with prior to the jury selection process.

[26] The Crown informed the court of the situation and referred to the letter from Dr. Freedman, the letter to the Sheriff's office and the letter to the Toronto Sun. The Crown also told the court that the police arrested Mr. Triffon that morning for attempt to obstruct justice.

[27] Mr. Triffon told Justice McMahon that he did not distribute the circular that he sent to the Toronto Sun, nor did he bring any copies of it to court. He changed his mind about circulating it.

[28] He told Justice McMahon that 20 years ago he was treated very badly by "the by-law court" and by Judge Dnieper. And "ever since then, my sole agenda has been …to get revenge on the courts, and, indirectly, against the Government for various things."

[29] He stated that "if I am put on a jury, I will vote to hang the jury. And I am telling you this honestly." He told the court that he could not be impartial and that he could not take the juror's oath.

[30] Justice McMahon excused him as a juror.

[31] That was all of the evidence.

The Position of the Parties

The Crown

[32] The Crown argues that Mr. Triffon was attempting in a highly objectionable way to subvert the jury selection process and/or a potential jury trial in which he would be a member of the jury. He was doing this by trying to avoid the jury selection process in which he goes before a judge and is called forth from the jury panel to be examined as a potential juror for an upcoming trial.

[33] The Crown maintains that Mr. Triffon was trying to blackmail the court and usurp the judge's function during the jury selection process. He was not letting the judge decide who would be on the jury panel. This amounts to subverting the jury selection process and the course of justice in a judicial proceeding.

The Defence

[34] The defence argues that Mr. Triffon was merely threatening to attempt to obstruct justice.

[35] Further, the defence submits that there is no authority for the proposition that "the initial jury selection process, prior to trial, is a judicial process."

Analysis

Is the jury selection process a judicial proceeding?

[36] I find that the jury selection process is a 'judicial proceeding' for the following reasons.

[37] I will first examine the applicable statute law.

Criminal Code

[38] Sections 118 (a) and (c) of the Criminal Code define 'judicial proceeding' as a proceeding,

(a) in or under the authority of a court of justice,

(c) before a court, judge, justice, provincial court judge or coroner,

[39] The Criminal Code makes it clear that the selection of a jury is done in court before a judge (Part XX, sections 626 to 644).

[40] These sections of the Criminal Code address the part of the jury selection process that takes place in court before a judge. I will now turn to the part of the selection process that takes place prior to this. It is governed by the Juries Act.

Juries Act

[41] The Juries Act governs the random selection of persons from the public to serve on juries. Is this part of the jury selection process a 'judicial proceeding'? I find that it is a 'judicial proceeding' for the following reasons.

[42] Under the Juries Act, the Sheriff is authorized and directed to select a group of citizens from which counsel will pick juries according to the procedure in the Criminal Code referred to above. The Sheriff does not perform this task before a judge; however, I find that the Act contains provisions that demonstrate that the Sheriff does this "under the authority of a court of justice" and is subject to the direction of a Superior Court judge. Examples of this are the following:

1. Every year the Sheriff for a county shall determine the number of jurors that will be required for the sittings of the Superior Court of Justice and fix the number of persons that shall be selected from municipalities and from territories without municipal organization. The Sheriff shall then certify this number and send a copy of this determination to the local registrar of the Superior Court of Justice (s. 5).

2. The Sheriff is allowed, with the permission of a judge of the Superior Court of Justice, to omit a person's name from the jury roll (s. 8 (3)).

3. When the jury roll is completed the Sheriff shall certify that the roll was prepared according to law and shall deliver notice of the certification to a judge of the Superior Court of Justice. A judge of the court may extend the time for certification "for such reasons as he or she considers sufficient" (s. 9).

4. Upon a request from the Sheriff, the Chief Justice of the Superior Court of Justice may in his or her discretion extend any times prescribed by the Act in connection with the preparation of the jury roll. The Chief Justice may also authorize the use of a previous roll until he or she fixes a date for the extension (s. 10).

5. A judge of the Superior Court of Justice may issue precepts to the Sheriff for the return of jurors (s. 12).

6. Where a judge of the Superior Court of Justice considers it necessary he or she may direct the Sheriff to return jurors in more than one set on such day as he or she thinks fit (s. 13 (1) ).

7. A judge of the Superior Court of Justice may direct the Sheriff to return additional jurors (ss. 14, 15).

8. When the Sheriff drafts the panel of jurors from the jury roll by hand as prescribed in sections 15 to 18, he or she shall do it in the presence of a Justice of the Peace (ss. 16, 18). However, if the Sheriff drafts the panel by an electronic or other automated procedure, the participation of a Justice of the Peace is not required (s. 18.1 (2) (b) ).

9. A judge of the Superior Court of Justice may direct that a person that the Sheriff excused from jury duty not be included in any future panels (s. 19 (2)).

10. A judge of the Superior Court of Justice may direct that the jurors summonsed for a sittings of the court be divided into two or more sets (s. 22), or that two or more panels be merged into one (s. 22.1).

11. A judge of the Superior Court of Justice may excuse jurors and direct that they be included in future panels or that they not ever be required to serve as jurors (s. 23).

12. A judge of the Superior Court of Justice may release from or postpone service of jurors (s. 24).

13. A judge of the Superior Court of Justice may issue precepts, make awards or orders for the return of a jury for the trial of any issue before the court or for amending or enlarging the panel of jurors (s. 25).

14. The Sheriff shall deliver to the clerk of the court the container with the names of the persons summonsed to attend for jury duty (s.27).

15. If there is no court in a "jury area", a regional senior judge of the Superior Court of Justice may order that residents of that area who are summonsed for jury duty to attend at a court outside the area (s. 36 (2)).

16. Prospective jurors, Sheriffs, court registrars and other officers are subject to the contempt power of the court (s. 39).

Case Law

[43] The summons that the Sheriff sends to prospective jurors is an order of the Court: R. v. Murphy, [1987] N.J. No. 235 (S.C.), paragraph 1.

[44] Based on these statutory and jurisprudential authorities, I find that the entire jury selection process from the point at which the Sheriff begins the selection process to the point at which counsel select their jury in court, is done "in or under the authority of a court of justice" and/or "before a court, judge, justice". Therefore, it is a 'judicial proceeding' as defined in s. 118 of the Criminal Code.

Did Mr. Triffon's actions constitute an attempt to obstruct justice?

[45] For the following reasons I find that what Mr. Triffon said and did does not constitute an attempt to "obstruct or pervert or defeat the course of justice in a judicial proceeding."

[46] Section 139 of the Criminal Code creates the offence of obstructing justice in a judicial proceeding. The relevant part of s. 139 for the case at bar is:

(3) … every one shall be deemed wilfully to attempt to obstruct, pervert or defeat the course of justice who in a judicial proceeding, existing or proposed,

( b ) influences or attempts to influence by threats, bribes or other corrupt means a person in his conduct as a juror;

[47] Section 24 of the Criminal Code defines "attempt":

24. (1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.

(2) The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law.

[48] The "crime of attempt consists of an intent to commit the completed offence together with some act more than merely preparatory taken in furtherance of the attempt": United States of America v. Dynar, [1997] 2 S.C.R. 462 at paragraph 50.

[49] There is no general test to determine the difference between preparation and attempt. "The application of this distinction to the facts of a particular case must be left to common sense judgment": R. v. Deutsch, [1986] S.C.J. No. 44, paragraph 26.

[50] The distinction between preparation and attempt is a qualitative one that involves "the relationship between the nature and quality of the act in question and the nature of the complete offence…" In making this distinction the court must consider "the relative proximity of the act in question to what would have been the completed offence, in terms of time, location and acts under the control of the accused remaining to be accomplished": Deutsch, paragraph 27.

[51] The Crown argued that Mr. Triffon should have participated in the jury selection process and let the lawyers challenge him. By not doing this he subverted and obstructed the jury selection process, thereby obstructing the course of justice.

[52] The Crown's argument is flawed for the following reasons. Firstly, there are legitimate ways to be excused as a juror other than going through the jury selection process and being challenged by the lawyers, albeit for different reasons.

[53] The Juries Act provides for the Sheriff to excuse potential jurors – see: ss. 18.2(5) and 19 (2). And s. 23(3) (a) of the Act authorizes "any judge of the Superior Court of Justice" to excuse a potential juror for religious reasons, illness or serious hardship or loss "before the day for attendance".

[54] Secondly, the Crown's argument implies that Justice McMahon was aiding him to subvert the jury selection process by excusing him without having to go through it.

[55] Thirdly, the Crown's submission does not relate to the charge. Mr. Triffon is charged with attempting to obstruct justice, not with actually obstructing it. In any case, I am not persuaded that in announcing that he would be an unfit juror prior to coming before a judge for the actual selection of a jury, he obstructed the jury selection process. There is no evidence that the selection of any jury was impeded by what he said and did.

[56] I find that by asserting that he would use his vote, position and influence as a jury member to cause a 'hung jury' irrespective of the evidence at trial", Mr. Triffon merely threatened to obstruct justice should he be selected to serve on a jury. He did not bring his circular to court and he did not have any contact with potential jury members. I find that the evidence shows that Mr. Triffon was attempting to get out of jury duty, not to obstruct justice by causing a hung jury.

[57] I also find that in the circumstances of this case his attempts to get out of jury duty do not constitute an attempt to obstruct justice.

[58] One might infer that sending his circular and note to the Toronto Sun was an attempt to obstruct justice because this act implies that he wanted the Toronto Sun to publish them. However, he does not state that in his note to Mr. Pazzano. He simply states that he will hand out the circular when he reports for jury duty. He does not even say to whom he will hand it out. It is plausible that he wanted to cause Mr. Pazzano to do what he did, that is, notify the authorities. Consequently, I have a reasonable doubt that he intended the Toronto Sun to publish the circular and/or his note to Mr. Pazzano.

[59] I find that the mere announcement to Mr. Pazzano of his intention to do something that had he done it would have been an attempt to obstruct justice does not constitute an attempt to obstruct justice in a judicial proceeding. It lies more in the category of a threat to do so.

[60] Therefore, based on all of the circumstances, the law and counsel's submissions, I find that the Crown did not prove beyond a reasonable doubt that Mr. Triffon is guilty as charged.

[61] I thank counsel for the efficient manner in which they presented this case.

[62] I would also like to thank Mr. Adrian Roomes for his intelligent, thorough research and comment on the law in this case. Mr. Roomes is a third year law student at Osgoode Hall who worked for a semester with the judges at the Brampton court house as a researcher.

Released: July 5, 2012

Signed: Justice J.W. Bovard