COURT FILE NO.: 11-09099G
DATE: 20140306
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JENNIFER PAN
Defendant
Robert E. Charney for the Crown
Paul Cooper for Jennifer Pan
HEARD: February 26, 2014
ruling on jennifer pan’S application
to strike the jury and increase juror compensation
Boswell J.
INTRODUCTION
[1] As criminal trials go, this one is long and complex. There are five accused, all jointly facing one count of first degree murder and one count of attempted murder. Counsel estimate that the trial will take six months to complete. Selecting a jury for a trial of this length is not easy. This application was argued two and a half weeks into jury selection. At that point, more than 1,000 prospective jurors had been processed, with only eight being sworn in as jurors.
[2] In this application Jennifer Pan seeks an order that the sworn jurors be discharged and that selection start over. In addition, she asks that the court order that juror compensation be increased to up to $200 per day and that any future jury panels be advised of the increased compensation payable to jurors. Though the application was initiated by Ms. Pan, all five accused persons join in the request for enhanced juror compensation, though not all agree that the existing jurors should be discharged.
[3] Ms. Pan argues that she has a constitutionally guaranteed right to a jury selected from a panel that represents a cross-section of the broader community. She submits that insufficient juror compensation has led to too many successful requests for excusal based on financial hardship. In the result, the panel from which the jury is being selected has been reduced to the point where it is no longer representative and instead includes a disproportionately large percentage of individuals who are paid for jury service by their employers.
[4] For the following reasons, I reject Ms. Pan’s submissions. I find that her Charter rights have not been infringed and that no remedy is necessary.
THE OFFENCE
[5] Jennifer Pan, along with four co-accused, is on trial for the murder of her mother and the attempted murder of her father. The Crown’s theory of the case is that Ms. Pan, with the assistance of others, arranged for the murder of her parents by way of a staged home invasion in November 2010. Pursuant to the arrangement, three armed males intruded into the home she shared with her parents in Unionville. During the staged home invasion both of her parents were shot. Her mother died but her father survived.
THE PROCESS OF JURY SELECTION
[6] Jury selection in this case has involved an enormous undertaking. An exceptionally large panel – 2100 people in total - was summonsed. There are at least three compelling reasons to summons so many prospective jurors:
(i) The length of the trial. Most people simply cannot serve as a juror over a six month trial without suffering substantial hardship for one reason or another;
(ii) There are two challenges for cause: one addressing racial prejudice and another addressing pre-trial publicity; and,
(iii) There are five accused, each with 20 peremptory challenges, plus 2 additional challenges for alternate jurors. The Crown has a matching number of challenges, such that the total number of peremptory challenges exceeds 200 in this case.
[7] Jury selection commenced in Newmarket on February 10, 2014. There is no jury assembly room in Newmarket, nor is there a large enough courtroom or combination of courtrooms to accommodate a panel of 2100 prospective jurors. That fact dictated that the panel be divided. At best, 350 prospective jurors can be accommodated at one sitting in Newmarket, and then only by linking together five courtrooms through closed circuit television.
[8] Experience has shown that roughly 30% of persons summonsed will write to the court prior to jury selection, to request an excusal or deferral based on a variety of hardships. Experience has also shown that roughly 10% of those summonsed will fail to attend on the appointed jury selection date. The vast majority of the no-shows are not recalcitrant jurors, but instead represent people who have moved, died, or are otherwise away and have not actually received their summons. With the foregoing factors in mind, 525 prospective jurors were summonsed for a return date of February 10, 2014, with the expectation that the panel in actual attendance that date would number approximately 350. In fact, some 311 prospective jurors attended on that date.
[9] It is not technically possible, within the jury selection procedures mandated by the Criminal Code, to split a jury panel up into blocks. The Code requires that a single panel be assembled. When the panel is exhausted it may be supplemented by additional prospective jurors, known as “talesmen”, if a full jury has not been created from the initial panel. In this case, the initial panel consisted of the 525 jurors summonsed to attend on February 10, 2014. That panel was exhausted by February 14, 2014 and at that time only five jurors had been sworn in.
[10] A further 525 prospective jurors were summonsed as talesmen to supplement the initial panel on each of February 19 and 27 and March 20, 2014. Each supplemental group has been exhausted before the next supplemental group attends. Some 285 attended on February 19 and another 340 on February 27. The initial expectation was that the total number of prospective jurors attending court, over the four weeks mentioned, would number between 1200 and 1400, taking into account any jurors who were excused in advance and any no-shows.
[11] On the first return dates of the initial panel and the first group of talesmen, the full groups have been broken down into smaller groups of 25 prospective jurors, randomly selected by drawing juror cards from a drum. Each group of 25 has been asked to return at a specific date and time. Groups have been returned in tiers, three tiers per day, until all are exhausted. Each prospective juror was provided, after assignment into a group, with a memorandum of information about the trial as well as a questionnaire to be completed and returned. A copy of the information sheet and questionnaire is attached as Appendix “A” to this ruling.
[12] When groups returned to the courthouse in accordance with their tiers, they were shown a short video about jury service, then brought into the courtroom one at a time in accordance with the order in which their cards were drawn from the drum. Each prospective juror provided his or her questionnaire to the court for review. Hardship issues were meant to be identified in the questionnaire. Where raised, the court addressed such issues with the prospective juror and, when appropriate, the juror was excused.
[13] As the process has played out, roughly 80% of prospective jurors have been excused for reasons of hardship. Hardships have come in all shapes and sizes, but have predominantly fallen into four groups: loss of wages, inability to provide continuing caregiving to a child or an ill relative, pre-booked travel plans, and health issues.
[14] No counsel has raised any issue with respect to the manner by which jurors have been excused, the basis for excusals, or the frequency of excusals.
[15] Prospective jurors who were not excused proceeded through the challenge for cause process and, provided they made it to the next stage, proceeded through the exercise of peremptory challenges.
[16] At the time of the argument of this application, the initial jury panel had been exhausted, as had the first group of talesmen – a total of 1,050 prospective jurors. That said, after accounting for no-shows and excusals prior to the return dates, those prospective jurors who actually attended court between February 10 and 19, 2014 numbered approximately 595. Those 595 prospective jurors have been processed as follows:
(a) The first two prospective jurors were utilized as the first two triers in the challenge for cause. Rotating triers have otherwise been utilized;
(b) Twenty-one prospective jurors were challenged by the triers in the challenge for cause;
(c) Ninety-two were challenged peremptorily by counsel;
(d) Eight were selected as jurors; and,
(e) The balance, roughly 472 potential jurors, were excused or deferred for one reason or another.
[17] Ms. Pan’s counsel filed two affidavits sworn by an articling student in his office. The student deposed, based on statistics compiled from the first 595 prospective jurors to be processed, that 27% were excused for reasons of financial hardship.
THE ISSUES
[18] Based upon my own observations, the first panel together with the first group of talesmen were divided roughly equally along gender lines. They represented people from all parts of York Region, including but not limited to, Newmarket, Aurora, Thornhill, Richmond Hill, Markham, Vaughan, Woodbridge, and Stouffville. They were a cross-section of occupations. As is common in York Region, they represented a wide range of racial and ethnic groups, including whites, blacks, Chinese, South Asians, Southeast Asians, West Asians, Filipinos and others. Indeed, no one argues that the panel, at least as initially constituted, was not a representative cross-section of the community. What is argued is that the panel was no longer a representative cross-section after excusals for hardship reasons. It is submitted by defence counsel that the reduced panel was over-represented by people whose employers pay them for jury service, typically government or large, private industries.
[19] The issues, as framed by the written application materials and refined in argument, are:
(a) Whether the defendants have a constitutional right to a representative jury panel; and,
(b) Whether the high rate of excusals for financial hardship reasons has undermined the representativeness of the panel to unconstitutional levels.
[20] The application is not about whether the current levels of juror compensation are generally inadequate. That said, some brief comments about the current level of juror compensation are warranted. Regulations passed under the Administration of Justice Act, R.S.O. 1990 c. A.6, provide that no juror compensation is payable for the first 10 days of jury service. The absence of compensation for 10 days is in keeping with the policy that jury service is a civic duty. After 10 days and until the 50th day of service, jurors are paid $40 per day. From day 50 onward, the stipend is $100 per day. The current levels have not changed since 1989.
[21] The purpose of the modest stipend provided to jurors is surely meant to alleviate, at least somewhat, the financial hardship that a juror will incur if serving on a lengthy trial. The current stipend has been entirely inadequate to its purpose in this trial. It does not appear to have attenuated the hardship claims of a single juror. This is not surprising. The minimum wage in Ontario will be $11.00 per hour as of June 1, 2014. A stipend of $100 per day will effectively only replace a minimum wage earner’s full-time salary, but not until after 49 days of jury service. In all likelihood a person working full-time at a minimum wage rate would not be able to afford to wait 50 days to begin receiving an income replacement stipend. In other words, I am unable to think of a single soul for whom the current stipend would relieve financial hardship.
[22] Regardless of any argument along constitutional lines, there is no doubt that substantial numbers of jurors have been excused for financial hardship reasons in this case. Jury selection has been immensely more difficult and prolonged as a result of clearly inadequate juror compensation. A total of 2,100 prospective jurors had to be summonsed to get 12. To state the obvious, that is a ratio of 175:1. The selection process is expected to last a month. One might be forgiven for wondering if it might not be cheaper to increase juror compensation for long trials rather than to mount such an immense undertaking to find jurors who are financially able to perform lengthy jury service at today’s rates of compensation.
CHARTER APPLICATIONS GENERALLY
[23] There is no dispute that in the case of a Charter challenge, like this one, the applicant bears the onus of establishing a breach to the balance of probabilities standard.
[24] Mr. Cooper urged me to consider the jury selection process contextually. I agree that Charter rights must be assessed contextually and purposively. Charter rights demand different things at different times, depending on the facts and circumstances of the individual case: see for instance R. v .White, 1999 CanLII 689 (SCC), [1999] 2 S.C.R. 417, [1999] S.C. J. No. 28, 174 D.L.R. (4th) 111, 135 C.C.C. (3d) 257. At times, individual rights may have to give way to other, more pressing rights, or societal concerns. The constitutional right to a fair trial by an independent and impartial jury is, in my view, unassailable. But the concept of a fair trial does not mean the fairest of all possible trials. It means one that is fundamentally fair. Ensuring that Ms. Pan and her co-accused receive a trial that is fundamentally fair is something that must be addressed contextually and with regard to the unique factual matrix of this case.
DISCUSSION
(a) Is there a constitutional right to a representative panel?
[25] The short answer to this first question is yes.
[26] Ms. Pan alleges a breach of her rights as guaranteed by sections 11(d) and (f) of the Charter, which provide as follows:
- Any person charged with an offence has the right
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment.
[27] Nothing in sections 11(d) and (f) expressly provides for a right to a trial by a representative jury. The constitutional imperative is a fair trial by an independent and impartial tribunal. That said, Canadian appellate courts have concluded that jury rolls that reflect a representative cross-section of the community go a long way to ensuring that petit juries selected from those rolls will be fair and impartial. A representative jury roll is considered essential to the ultimate selection of a fair, competent and impartial jury.
[28] In R. v. Sherratt, 1991 CanLII 86 (SCC), [1991] 1 S.C.R. 509, Justice L’Heureux-Dube observed that jury selection in criminal cases engages two Charter rights. Subsection 11(d) of the Charter expressly guarantees the right to be tried by an independent and impartial tribunal. Subsection 11(f) guarantees the right to a jury trial and, by implication, she said, the right to a jury that is impartial and representative. She held, at para. 35, that “the Charter right to a jury trial is meaningless without some guarantee that it will perform its duties impartially and represent, as far as is possible and appropriate in the circumstances, the larger community.”
[29] I have referred in these reasons to jury rolls, jury panels and petit juries. It would no doubt be helpful to briefly address the differences between them.
[30] As Laforme J.A. outlined in R. v. Kokopenace, 2013 ONCA 390, [2013] O.J. No. 2752, 299 C.C.C (3d) 48, at para. 4, the jury selection process in Ontario criminal cases takes place in three stages. At the first stage, a jury roll is prepared. The Juries Act, R.S.O. 1990, c. J.3, requires the local sheriff, on an annual basis, to determine the aggregate number of persons required to meet the demands for jury trials in the jurisdiction over the ensuing year. The Municipal Property Assessment Corporation is then asked to randomly select names from municipal enumeration lists in order to construct the jury roll for the next year. The jury roll is a global list of potential jurors from which jury panels are assembled on a case by case basis throughout the year.
[31] It is well-settled that an accused person is constitutionally entitled to a jury roll that is representative of the broader community: R. v. Sherratt, as above, R. v. Kokopenace, as above, R. v. Church of Scientology of Toronto, 1997 CanLII 16226 (ON CA), [1997] O.J. No. 1548, 33 O.R. (3d) 65, 116 C.C.C. (3d) 1. A representative jury roll contributes to a sense of confidence that the jury will be fair and impartial: R. v. Kokopenace, as above, at para. 26. A representative roll brings together a diverse group of individuals, having different life experiences, educational backgrounds, abilities and cultural sensitivities. Indeed, as Rosenberg J.A. remarked in R. v. Church of Scientology of Toronto, as above, at para. 151, “the essential quality that the representativeness requirement brings to the jury function is the possibility of different perspectives from a diverse group of persons.”
[32] The representativeness of the jury roll is achieved through the randomness inherent in its construction.
[33] In this instance, no counsel suggests that the applicable jury roll is not representative of the community as a whole.
[34] Jury panels are randomly created from the jury roll. In this particular case, the panel essentially consists of four separate groups of 525 prospective jurors, for a total of 2,100. I am persuaded that accused persons have a constitutional right to a representative jury panel for the same reasons that entitle an accused person to a representative jury roll. Given that the petit jury is actually selected from the jury panel, it is essential that the panel is a representative cross-section of the community. The random selection of panels from a representative jury roll ensures that panels will also be a representative cross-section of the broader community.
[35] The petit jury is comprised of the twelve individuals who will hear the case and ultimately render a verdict. It is selected in the courtroom from the jury panel assembled for the particular case. Its selection is influenced by a random drawing of juror cards from a drum, but ultimately it is far from a random exercise. Counsel utilize their peremptory challenges to select a jury of their choice from those randomly selected from the drum.
[36] It is conceded by defence counsel that an accused person is not entitled to a petit jury that is representative. Representativeness is essential at the poll and panel levels, but there is no guarantee that a petit jury will be representative. Indeed, it would be impossible to ensure that twelve jurors are representative of the community as a whole. As McLachlin J., as she then was, held in R. v. Biddle, [1995] 1 S.C.R. 76, at para. 58, “To say that a jury must be representative is to set a standard impossible of achievement. The community can be divided into a hundred different groups on the basis of variants such as gender, race, class and education.” It will never be possible to represent all of the variants present in the community at large in just twelve jurors. Representativeness must be achieved at the jury poll and jury panel levels.
[37] I conclude that an accused person is constitutionally entitled to a representative roll and panel. I find, on the basis of counsel’s concessions, that the roll and panel in this case have been a representative cross-section of the broader York Region community. I therefore move on to the next question.
(b) Has the high excusal rate for financial hardships undermined the representativeness of the jury panel in this case?
[38] As noted, counsel concede that the jury poll and jury panel engaged in this instance are sufficiently representative to meet constitutional standards. But, as L’Heureux-Dube J. pointed out in R. v. Sherratt, as above, at para. 36, the in-court jury selection procedure may impact on the representativeness of the jury in some circumstances. Mr. Cooper argues that that is exactly what has happened here.
[39] At the initial stage of the in-court selection process, the court typically vets a jury panel to ensure that it includes only Canadian citizens, that all prospective jurors are impartial as between the Crown and the accused, and that the prospective jurors can understand the language of the trial. Prospective jurors are also given the opportunity to raise any hardship issues with the court that may make it too difficult for them to sit as a juror. The precise manner of vetting the panel differs from case to case and from judge to judge. In this instance, vetting the panel and identifying hardship issues has been aided by the use of questionnaires, as described above.
[40] There is no doubt that a substantial number of prospective jurors have raised financial hardship issues in their questionnaires and they have all but universally been excused where those issues have been raised. Many additional prospective jurors have been excused for reasons other than financial hardship, including health problems, pre-booked travel, and caregiving responsibilities. I will refer to the groups of prospective jurors remaining after excusals as the “vetted panel”.
[41] The defence assertion is that so many prospective jurors have been excused on the basis of financial hardship that the vetted panel is no longer representative of the larger community. The panel, it is submitted, has been reduced to the point where it is over-represented by persons whose employers pay them their usual salary during jury service. The vetted panel is no longer a random cross-section of the broader community, but instead is skewed towards persons who work for employers capable of and willing to pay for jury service over an extended period of time.
[42] The limited evidentiary record on this application does not allow me to reach any firm conclusion about what percentage of those persons remaining in the vetted panel is paid for jury service. Common sense suggests that it is indeed a high percentage. I proceed with the analysis on the basis that a high percentage of the vetted panel includes persons who are paid by their employers during jury service. Having said that, I still find that the applicant has failed to meet her onus of establishing that her Charter rights have been infringed. There are two principal bases for my finding.
[43] First, the evidence, in my view, does not support the assertion that the representativeness of the panel has been undermined by the manner in which jury selection has proceeded. Second, even if the assertion that the panel is over-represented by jurors who are paid for jury service is correct, I am not satisfied that over-representation of that particular characteristic is material. The ability to construct a jury that is fair, competent, independent and impartial has not been materially impaired. In other words, the jury selection remains constitutionally valid. I will elaborate on these two bases below.
[44] There are, in addition, further shortcomings in the evidentiary record that militate against granting the relief sought in this case and I will review them briefly as well.
The Panel Remains Representative
[45] The focus on this application has been on one particular characteristic of potential jurors: whether or not they are paid by their employer for jury service. It is important, however, to remain mindful of the fact that a jury panel that represents the community as a whole is one that reflects many variants: gender, age, marital status, educational background, occupational experience, intellectual ability, racial and/or ethnic background, urban and rural dwellers, to name but a small fraction of possible variants.
[46] Mr. Cooper’s argument was premised on the assertion that persons who are paid for jury service generally work for large companies or government agencies. It is, of course, possible that he is right. But, in my view, the evidentiary record does not sufficiently support such an assertion. Attached as Appendix “B” to this ruling, is a summary of the occupations of jurors that were challenged peremptorily in the initial panel and the first group of talesmen. A very wide range of occupations is evident. Some clearly work for government agencies, but it is not clear whether the majority work for large companies or not. All that can be said with assurance is that none of them raised any hardship issues.
[47] The vetted panel in this instance includes men and women from all over York Region, the old and the young, of a wide variety of racial and ethnic backgrounds, presumably with different educational histories and clearly with a variety of vocational backgrounds. They are, it must be said, representative of a broad cross-section of the community. They have in common the feature that none of them has raised a financial hardship issue. A more accurate cross-section of the community would obviously include members who cannot afford to sit on a jury without extreme financial hardship. But it is equally obvious that it is not appropriate that we include those persons in the panel. Absolute representativeness must be sacrificed for the more compelling concern of not causing substantial hardship to members of the community from performing jury service.
[48] In R. v. Church of Scientology, as above, at para. 148, Rosenberg J.A. held that there is, in fact, no absolute right to a representative panel or roll. Instead, “what is required is a process that provides a platform for the selection of a competent and impartial petit jury, ensures confidence in the jury’s verdict, and contributes to the community’s support for the criminal justice system.”
[49] In my view, all of the objectives described by Rosenberg J.A. are met in this case. The vetted panel that has remained after hardship claims have been addressed continues to be sufficiently representative to meet constitutional requirements.
The Immateriality of Employer Compensation
[50] As I described it, Mr. Cooper’s argument is that so many individuals are being excused on the basis of financial hardship that those remaining are generally retirees, government employees, or people employed by big businesses. The composition of the vetted panel is, in his submission, skewed. I remain somewhat unclear as to whether the over-represented characteristic complained of is that of being paid for jury service, or that of working for government or big business. In the end, it matters not to my analysis.
[51] The breakdown of the occupations of jurors who have been challenged peremptorily (Appendix “B”) demonstrates that the vetted panel continues to represent a broad range of occupations even after hardship excusals have been granted. It is not clear from the evidence before the court that those remaining in the vetted panel work for big business, though it is apparent that at least some work for government agencies.
[52] The application record also does not include evidence that working for the government, or a large company as opposed to a small one, or the fact of being paid by one’s employer for jury service, materially affects one’s attitudes, beliefs, core values, life experiences, intellectual ability, impartiality, fairness, open-mindedness, or general competence.
[53] Not every characteristic is significant in assessing whether a jury panel meets the essential element of representativeness in terms of Charter compliance. Ultimately, perfect representativeness is an impossible standard to meet. The Charter does not require perfect representativeness. Indeed, as Rosenberg J.A. pointed out in R. v. Church of Scientology, any attempt to achieve perfect representativeness will inevitably sacrifice randomness.
[54] Even where there is established over-representation of a particular characteristic, as there arguably is here (i.e. persons paid by their employers through jury service), one must still assess whether and to what extent the particular characteristic is significant. When considering Charter compliance, there are many characteristics that are simply not material. It matters not, for instance, if the panel contains a representative proportion of people with freckles, or people who have to take public transit, or people who prefer baths to showers, or left-handed people. These, and many other, characteristics are simply not material in terms of the composition of a jury. In my view, and in the absence of any evidence otherwise, the fact that someone is paid by his or her employer for jury service is not a characteristic that is material to juror competence, fairness, independence, or impartiality. Neither is the characteristic of working for government, or big business.
Other Evidentiary Shortcomings
[55] I have rejected the assertion that the substantial excusals for financial hardship have, in this instance, rendered the jury panel unrepresentative. Even if I had concluded that being paid for jury service is a material characteristic in the concept of representativeness, I would have had a great deal of difficulty granting the application, given significant gaps in the evidentiary record.
[56] Almost every jury trial will involve panel members who seek to be relieved for reasons of hardship, financial or otherwise. In this case, the vetted panel represents only about 20% of those who attended jury selection. Almost 30% of excusals were based on financial hardships. That is in no way surprising in the face of a six month trial.
[57] Counsel impeached the rate at which jurors were being excused for financial hardship. The assertion was that an excusal rate of 27% for financial hardship is unconstitutionally high. Even if I agreed with counsel’s assertion, there is no evidence before the court as to what percentage of excusals would be Charter compliant. There is insufficient evidence before the court to enable me to establish a range of excusals that are constitutionally acceptable.
[58] Even if it were possible for me to make a finding about what level of hardship losses remains constitutionally tolerable, there is no evidence before the court that correlates a particular increase in juror compensation with a meaningful decrease in excusal requests. In other words, the court cannot determine, based on the record now before it, what impact an increase of $50 per day, or even $100 per day, would have on the financial circumstances of panel members. It is simply unknown what percentage of hardship claims would be alleviated by a compensation rate of $200 per day.
[59] In the result, the evidentiary record simply does not support a finding that the vetted panel is not sufficiently representative to meet constitutional standards. The application is dismissed.
Boswell J.
Released: March 6, 2014.
Appendix “A”
JUROR INFORMATION SHEET
(RETURN DATE [DATE] at [TIME] a.m.)
INTRODUCTION
You have been summoned as a potential juror for the trial of Jennifer Pan, David Mylvaganam, Eric Carty, Daniel Wong and Lenford Crawford. They are charged with the murder of Bich Ha Pan and the attempted murder of Hann Pan in November 2010.
Crown and defence counsel estimate that this trial may last approximately six months. Estimates are never precise. The trial may be longer or shorter than counsel have estimated.
(a) JURY SELECTION
We will shortly begin the jury selection process in this case. To make the process more manageable and to try to avoid having a large number of you waiting in the courthouse for several days, you will be randomly separated into groups of 25 people. Each group will be asked to return to court at a specific date and time, either later this week or next week, to go through the selection process.
Juries are an important part of the administration of justice in Canada. Jury duty is an important civic responsibility. No one is excused from jury duty without a substantial and compelling reason. But some of you may be unable to act as jurors for legitimate reasons. Attached is a questionnaire. PLEASE READ IT, COMPLETE IT, AND BRING IT WITH YOU WHEN YOU RETURN TO COURT. I will speak to you about it when you return.
COURT SCHEDULE
Those of you who are chosen to be jurors in this case will be required to attend here Monday to Friday from 10:00 a.m. until 4:30 p.m. The Court will not sit during March break, which is the week of March 10, 2014, nor will it sit the first three days of the following week – March 17, 18 and 19. The Court will also not sit on Passover, April 15, 2014, or on Good Friday or Easter Monday, April 18 and 21. There will be other occasional days during the trial when we will not sit. You will be able to use those days to attend to personal matters. There are roughly 10 days that have already been identified as non-sitting days during the course of the trial. Otherwise, we will continue daily sittings until the trial concludes. If you are selected as a jury you will be provided with a calendar identifying the days on which the Court will not be sitting.
Jurors are permitted to go home each night, until the end of the trial when their deliberations begin. Once jury deliberations begin, jurors are sequestered. This means that during jury deliberations, jurors are not permitted to return home at night, or to have contact with family members, employers or friends. We provide jurors with meals and nightly hotel accommodation during the deliberation period.
JOB SECURITY
Employers MUST permit employees to serve as jurors. An employer CANNOT dismiss an employee because of jury duty.
The law does not require an employer to pay an employee for lost wages due to jury service. Many businesses have labour contracts that provide for payment of wages when employees serve as jurors. CHECK WITH YOUR EMPLOYER TO DETERMINE IF YOU WILL BE PAID YOUR WAGES IF YOU ARE SELECTED AS A JUROR.
Selection as a juror will NOT disentitle you to Employment Insurance Act eligibility.
PLEASE DISCUSS YOUR AVAILABILITY TO BE A JUROR WITH YOUR FAMILY AND EMPLOYER BEFORE RETURNING TO COURT. I will speak to you about it when you return.
FINANCIAL COMPENSATION
If you are selected as a juror, you will receive no pay or allowance for the first 10 sitting days. From day 11 to day 49 you will receive $40 for each sitting day. From day 50 on, jurors receive $100 for each sitting day until the end of the trial. These fees are set by law. By sitting day, I mean a day when you are required to come to the courthouse.
JUROR CRITERIA
The following persons are not eligible to be jurors:
a lawyer or student-at-law;
a person employed in law enforcement;
a firefighter;
a medical practitioner or veterinary surgeon;
a person convicted of an indictable offence that may be prosecuted by indictment and who has not been granted a pardon;
a person who has a physical or mental disability that would seriously impair their ability to be a juror;
persons under the age of 18 years; and
persons who are not Canadian citizens.
IMPARTIALITY
It is of central importance in every trial, that jurors remain impartial and that they decide the case based solely on the evidence heard during the course of the trial and the legal instructions provided by the trial judge at the end of the case. Jurors are not investigators or advocates. Therefore, you must not seek out any information, or do any research about the case, the persons involved in it, or the law that applies. Do not consult other people or other sources of information, printed or electronic. Do not investigate any part of the case on your own or together with anybody else. This means, amongst other things, do not “Google” this case, the people or places involved in it.
PLEASE FILL OUT THE ATTACHED QUESTIONNAIRE AND BRING IT WITH YOU WHEN YOU RETURN. COURT STAFF WILL COLLECT IT AND I WILL REVIEW IT WITH YOU THEN.
JUROR QUESTIONNAIRE
(Please print or circle your answers legibly)
NAME _______________________________________
JUROR NUMBER (ON SUMMONS) ________________________
ARE YOU OVER THE AGE OF 18? YES NO
ARE YOU A CANADIAN CITIZEN? YES NO
DO YOU LIVE IN YORK REGION? YES NO
HAVE YOU EVER BEEN CONVICTED OF A CRIMINAL OFFENCE THAT MAY BE PROSECUTED BY INDICTMENT AND FOR WHICH YOU HAVE NOT BEEN GRANTED A PARDON OR RECORD SUSPENSION?
YES NO
- DO YOU HAVE DIFFICULTY UNDERSTANDING ENGLISH?
YES NO
- ARE YOU ABLE TO READ ENGLISH?
YES NO
- DO YOU HAVE ANY PROBLEM WITH YOUR HEARING?
YES NO
- DO YOU HAVE ANY PROBLEM WITH YOUR VISION THAT WOULD MAKE IT DIFFICULT FOR YOU TO SERVE AS A JUROR?
YES NO
- DO YOU SUFFER FROM OR ARE YOU BEING TREATED FOR ANY CONDITION THAT WOULD MAKE IT DIFFICULT FOR YOU TO SERVE AS A JUROR?
YES NO
If the answer is “Yes”, please explain.
- THIS TRIAL WILL TAKE APPROXIMATELY SIX MONTHS TO COMPLETE. WOULD SERVING AS A JUROR FOR THAT PERIOD OF TIME CAUSE A SUBSTANTIAL HARDSHIP FOR YOU BY INTERFERING WITH YOUR BUSINESS, EMPLOYMENT, FINANCIAL, MEDICAL, FAMILY OR OTHER OBLIGATIONS?
YES NO
If the answer is “Yes”, please explain why.
- IS THERE ANY REASON WHY IT WOULD BE DIFFICULT FOR YOU TO BE SEQUESTERED FOR THE PERIOD OF JURY DELIBERATIONS?
YES NO
If the answer is “Yes”, please explain why.
- DO YOU KNOW JENNIFER PAN, DAVID MYLVAGANAM, ERIC CARTY, DANIEL WONG, OR LENFORD CRAWFORD, OR ANY MEMBERS OF THEIR FAMILIES?
YES NO
If the answer is “Yes”, please specify whom?
- DO YOU KNOW ANY OF DEFENCE COUNSEL, PAUL COOPER, HOLLY CHAPMAN, PETER BAWDEN, EDWARD SAPIANO, LAURENCE COHEN, ERIN DUNSMORE, DARREN SEDEROFF, BRIAN MICNER, OR FILICE FERRI? OR CROWN COUNSEL, ROBERT SCOTT, JENNIFER HALAJIAN, OR MICHELLE RUMBLE? OR THE TRIAL JUDGE, JUSTICE BOSWELL?
YES NO
If the answer is “Yes”, please specify whom?
- DO YOU KNOW ANY OF THE POTENTIAL WITNESSES IN THIS CASE WHO ARE LISTED ON THE ATTACHED SHEET (PLEASE BE AWARE THAT THIS LIST IS MEANT FOR YOUR REVIEW ONLY AND IS NOT TO BE DISTRIBUTED TO ANYONE ELSE?
YES NO
If the answer is “Yes”, please specify whom?
POTENTIAL WITNESSES FOR THE PROSECUTION
Hann Pan William Courtice
Felix Pan Bruce Downey
Edward Pacificador Kevin McCloskey
Adrian Tymkewicz Randy Slade
Andrew Montemayor Alan Cooke
Ricardo Duncan Lindsay Gibson
Juann Pan Jenna Ruscoe
Minh Tran William Goetz
Peter Chung Robert Milligan
Michael Arnold David MacDonald
Paul McPhail James Minns
Andre Deterville Cecile Hammond
Duran Fernandes Greg McGuire
Hana Omar Karen McDowell
Joseph Oh Patricia Michaud
Triston Francis Mason Baines
Duane Simpson Mike Stesco
Karen Solomon Brian Darroch
Dorvett Sutherland Jonathan Knarr
Guarav Patel Tom Wan
Alekso Petron Brian Crawford
Dora Reddick Steve Ross
Shavaughan Thompson Craig Fowlow
Natasha Williams Scott Olar
Rochelle Grant
Patrice Loman
Ashley Fenton
Michelle Luong
Desmond Francis
Richie Eslawa
Michael Young
Risto Toplovski
Dr. John Doucet
Christine McCarthy
Shane Staniek
Melanie Richard
Graham Cleghorn
Gavin Jansz
Kristi Jackson
Don Calpito
Derron Lawrence
Joseph Sadoun
Kelly Swift-Henderson
Appendix “B”
Juror Number
Occupation
Juror Number
Occupation
4815
Revenue Collector
7486
Analyst
6536
Homemaker
953
CA
2310
Manager
2120
Nurse
537
Homemaker
5392
Teacher
2977
Technical Writer
2150
Retired
4562
Engineering Tech
2994
Admin Assist
6244
Technical Specialist
7686
Teacher
7301
Plumber
770
Marketing Spec
3499
Developer
765
Environmental Aide
7638
Caretaker
7983
Teacher
4361
Manager
5822
Factory Worker
586
TTC
6656
CS Rep
5856
Teacher
6351
Stock Handler
7426
Caretaker
6803
Machine Operator
5145
Manager
4378
Clerical Associate
4376
Principal
6390
Town of Newmarket
2085
Sales Associate
626
Admin
3995
Clerk
3595
Supervisor
542
Bell Tech
5331
Import Analyst
805
Electrician
1305
Demonstrator
2401
Technologist
4816
Housecleaner
3975
Supervisor
7185
Mgr
93
Manager
2589
Secretary
7180
CRA
6858
Software
4025
Architect
1855
Manager
5951
Software Designer
430
Admin
1710
Manager
955
Manager
4921
Lineman
5377
Customer Service Rep
4167
Assistant
1321
Admin
5394
Designer
772
Retired Bookkeeper
506
Teacher
7895
Admin
2455
Clerical
7982
Actuary
7244
Retired
1646
Executive Assistant
4111
Analyst
4778
Director
2314
Risk Specialist
1483
Teacher
1848
Analyst
3175
Ins. Broker
6613
IT Prof
813
Retired Teacher
1312
CMM Technician
4173
Teacher
728
Teacher
7403
Manager
7046
Retired Secretary
Juror Number
Occupation
Juror Number
Occupation
7649
Courier
5007
Laboratory Tech
6430
Tech
4274
Analyst
2326
Banker
2596
Customer Service
437
Retired
7578
Advisor
600
Teacher
809
Manager
4984
Education Instructor
633
Teacher
1717
Manager