ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
COURT FILE NO.: 4-722/11
DATE: 20121203
B E T W E E N:
HER MAJESTY THE QUEEN
A. MacPherson & M. Bloch , for the respondent
Respondent
- and -
JONATHAN CIOPPA
J. Falconer, J. Roy & S. Mathai, for the applicant
Applicant
HEARD: November 26 & 27, 2012
Nordheimer J. :
[ 1 ] Mr. Cioppa was charged with second degree murder. At the conclusion of the closing submissions of the defence [1] , the defence raised an issue with respect to the conduct of one of the jurors. As the issue did not, in my view, impinge on the ability of the Crown to make her closing submissions, I directed the Crown’s closing submissions to proceed. As the closing submissions together took the proceedings very late into the afternoon, the matter involving the juror was put over to the next morning.
[ 2 ] The next morning, which was scheduled to be the day for my final instructions to the jury, the defence brought a formal application for an inquiry to be held under s. 644 of the Criminal Code regarding whether juror #9 should be discharged. Ultimately I declined to conduct an inquiry and dismissed the application for brief reasons that I gave at the time. Given that the timing of the matter did not allow for full reasons to be given, I now consider it appropriate to expand on the reasons for my decision.
[ 3 ] The situation involving juror #9 arose in the following circumstances. At the conclusion of his closing submissions, defence counsel advised me that he had a concern regarding the conduct of juror #9. At that point, two instances regarding the conduct of this juror were raised. First, defence counsel advised me that when Mr. Cioppa began his evidence, juror #9 turned his back on the witness and did not look at him for the entirety of his evidence in chief. Once cross-examination commenced, juror #9 re-oriented himself and began, at least on some occasions, to look at Mr. Cioppa. Second, defence counsel advised me that towards the very end of his closing submissions, juror #9 made some hand motions that were interpreted to mean that the juror wanted defence counsel to end his submissions.
[ 4 ] The next morning, when the formal application was brought, a third instance of conduct by juror #9 was recounted to me. This instance occurred much earlier in the trial when Crown counsel was examining a witness regarding the events surrounding the stabbing of the deceased. During this questioning, defence counsel intervened to say that there was no issue that Mr. Cioppa had a knife on the evening in question and had been showing it off. I was told that, when this admission was made by the defence, juror #9 looked at Mr. Cioppa and shook his head in a negative manner.
[ 5 ] Defence counsel submitted that this conduct by juror #9 gave rise to serious concerns regarding his impartiality and that, as a consequence, I should conduct an inquiry into the matter. Specifically, I was asked to bring juror #9 into the courtroom and make inquiries as to whether he acted in the manner that was outlined to me and, if so, whether he had made up his mind or was not otherwise open in terms of his views of the case. Defence counsel did advise me that, if juror #9 denied that he had acted in such a fashion, defence counsel would immediately seek the discharge of juror #9.
[ 6 ] In response to this application, Crown counsel took the position that the reported conduct of juror #9 did not rise to the level that would warrant an inquiry. Crown counsel submitted that there were other explanations that could account for some or all of the actions of juror #9. In any event, Crown counsel submitted that there was insufficient reason to believe that juror #9 would not do his duty as a juror and insufficient reason to believe that he would not consider, and be receptive to, the views of his fellow jurors such as to warrant an inquiry being made.
[ 7 ] I declined to conduct an inquiry, chiefly for the same reasons as outlined by Crown counsel.
[ 8 ] Section 644(1) of the Criminal Code reads:
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. [emphasis added]
[ 9 ] There are provisions in the Criminal Code that allow for an inquiry to be conducted into the attitudes of jurors before they are chosen. This is the basis for the challenge for cause process. Not all lines of inquiry are permitted in terms of inquiring into those attitudes, however. Generally speaking, the inquiry is restricted to specific types of biases that empirical evidence has established may arise, the most common of which are biases arising from racial attitudes and biases arising from pre-trial publicity.
[ 10 ] There have been instances in the past where events have taken place that have warranted a court embarking on an inquiry as to whether a specific juror should be discharged. Instances of unusual conduct during the course of deliberations is one example. Possible contamination of an individual juror, or the whole jury, arising from improper contact with other individuals is another example.
[ 11 ] That said, there appears to be considerable authority for the proposition that the secrecy and confidentiality of jurors and their conduct is to be jealously guarded. Consequently, the test for when the court should embark upon an inquiry under s. 644 is a high one. This point was made in R. v. Pan; R. v. Sawyer , 2001 SCC 42 , [2001] 2 S.C.R. 344 where Arbour J. said, at para. 97:
Likewise, there are limits to the use of s. 644 of the Code as a mechanism for discharging jurors in the course of the trial. Section 644 only permits jurors to be discharged in the course of the trial where a serious issue arises as to their fitness as a juror. It is not designed to encourage jurors to bring trivial complaints about their fellow jurors to the attention of the trial judge in the course of the trial, nor does it contemplate the discharge of jurors over minor concerns.
See also R. v. Giroux (2006), 2006 10736 (ON CA) , 207 C.C.C. (3d) 512 (Ont. C.A.).
[ 12 ] In my view, the conduct attributed to juror #9 did not rise to the level that would warrant an inquiry under s. 644. There may be other explanations for the juror’s conduct, or at least some of it, than an assumption that the juror had made up his mind against the accused to the extent that the juror was no longer impartial. In terms of the hand actions towards the end of the defence closing, the juror may have been indicating nothing more than his impatience with counsel arising out of his belief that he understood the defence position and did not require further explanation of it. It may be that other jurors were similarly impatient but simply had the courtesy not to express it openly. Observation of indications of impatience by jurors during closing submissions, and even more so during the judge’s charge, is not an uncommon experience. Similarly, the juror’s reaction to the admission that Mr. Cioppa had a knife on the evening in question and had been showing it off, may have been a legitimate expression of the juror’s disapproval of that conduct. If that was the case, the juror was not alone. Defence counsel, on more than one occasion, himself described the conduct of Mr. Cioppa in disapproving terms, using words such as “stupid” to describe it.
[ 13 ] More importantly, however, is the fact that, even if the conduct of the juror did reflect that he had formed an opinion contrary to the position of Mr. Cioppa, that did not mean, in and of itself, that the juror would not honour his oath and do his duty including listening to the views of his fellow jurors. It is not realistic to expect that each and every juror will go into deliberations with a completely open mind as to the ultimate verdict. Jurors can be expected to form views and opinions regarding the evidence and they may well develop an inclination towards a particular verdict. That is human nature and there is nothing wrong with it as long as each juror maintains an open mind regarding the final conclusion and is receptive to the views of their fellow jurors. This concept is recognized and explained to jurors when they are given the preliminary instructions at the outset of a trial. We routinely tell jurors:
As the trial proceeds, you may discuss the case amongst yourselves when all of you are together in your jury room. You must not, however, come to any conclusions about the case during those discussions. Keep an open mind.
[ 14 ] The other safeguard against a juror who prematurely decides the case is the requirement for unanimity among the jurors as to the ultimate verdict. This point was made in Pan where Arbour J. said, at para. 99:
Clearly, the requirement of unanimity is not a complete remedy for jury partiality or juror misconduct. Nevertheless, the possibility of a biased juror having a decisive effect upon the verdict is reduced in a legal system such as ours that imposes unanimity, as opposed to a system that permits majority verdicts. Undesirable as this result may be, a mistrial resulting from a jury’s inability to reach a unanimous verdict provides an additional safeguard against a result driven by bias and prejudice.
[ 15 ] The court should, in my view, be wary of too quickly inquiring into a juror’s conduct in such circumstances. Otherwise, every time a juror rolls his or her eyes, stares off into space, closes their eyes or demonstrates any number of other human reactions, it may lead to an inquiry being held on the basis that the juror has shown some absence of impartiality. Jurors swear an oath to do their duties and the court should be loathe to assume that that oath will not be honoured. It also seems to me that there could be unexpected and unintended consequences from subjecting jurors to such inquiries, both in terms of their own continued conduct as jurors and the perspective of, and interaction with, their fellow jurors.
[ 16 ] Consequently, I determined that I would not conduct an inquiry under s. 644 of the Criminal Code . I should add that I also summarily dismissed the mistrial request that defence counsel made directly after I decided not to conduct an inquiry. If there was an insufficient basis for an inquiry to be held, there was no basis upon which a mistrial could properly be declared.
NORDHEIMER J.
Released: December 3, 2012
COURT FILE NO.: 4-722/11
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
JONATHAN CIOPPA
Applicant
REASONS FOR DECISION
NORDHEIMER J .
RELEASED:
[^1]: The defence called evidence so their submissions preceded the Crown’s closing submissions.