SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 11-09099G
DATE: 20140724

RE: R. v. Jennifer Pan, David Mylvaganam, Eric Shawn Carty, Daniel Chi-Kwong Wong and Lenford Roy Crawford

BEFORE: The Honourable Mr. Justice C. Boswell

COUNSEL:
Rob Scott for the Crown

Paul Cooper and Jeffrey Fisher for Jennifer Pan

Peter Bawden for David Mylvaganam

Edward J. Sapiano for Eric Shawn Carty

Erin Dunsmore for Daniel Chi-Kwong Wong

Darren Sederoff for Lenford Roy Crawford

HEARD: July 23, 2014

ENDORSEMENT re suppmental jury inquiry

[1] On July 21, 2014 I released a written ruling on a mistrial application brought by counsel on behalf of Ms. Pan and Mr. Carty. The application arose as a result of a letter the jury provided to the court. The letter indicated that the spouse of one of the jurors had provided some information to the juror via text message. The juror who received the information from his spouse shared it with some of the other jurors.

[2] As a result of the letter, I conducted an inquiry of the jurors. By way of that inquiry I determined the following:

(a) The implicated juror whose spouse texted him was juror number four;

(b) Juror four advised that he refused to speak to his wife about this case and in the result she had been attending the case on a regular basis out of curiosity;

(c) The information provided to juror four and communicated to other jurors included:

i. A comment about the size of a witness’s breasts;

ii. An indication that the court was delayed on one occasion because of the late arrival of a witness;

iii. An indication that the court was delayed on another occasion because of the late arrival of one of the lawyers;

iv. An indication that the court was delayed on a further occasion because Mr. Carty did not receive a sandwich; and,

v. An indication that an upcoming witness was going to be Hana Omar.

[3] I was not satisfied that a mistrial was warranted in the circumstances. My full reasons are set out at 2014 ONSC 4287.

[4] More information of a troubling nature has surfaced in relation to the spouse of juror four. In the result, a supplementary inquiry has been undertaken. Yesterday Detective William Goetz testified on a voir dire as part of the further inquiry into potential improper contact with the jury.

[5] Detective Goetz has testified on several occasions during this trial. He was involved in the investigation of the offences before the court. He conducted a number of interviews of persons central to the investigation. He testified yesterday that the spouse of juror four has interacted with him on a number of occasions when he has attended for the purpose of giving trial testimony. He was not aware that she was the wife of a juror. He described their contact as minimal, but said that it included the following:

(a) On one occasion after one of Jennifer Pan’s statements was played in court, he was on his way from the courtroom to the elevator. The spouse was just about to board the elevator. As she did, she turned towards him and made a clapping motion, which he understood to mean she was applauding his work in the interview of Jennifer Pan. He did not get on the elevator with her. She did not otherwise speak to him on that occasion;

(b) On another occasion – he could not recall when - she told him in passing in the hallway outside of the courtroom that he has a lot of patience. It is to be noted that some of the interviews he conducted lasted 5, 6 or even 7 hours;

(c) On a third occasion, after cross-examination by one or more defence counsel, the spouse commented to him, again in the hallway, that he “needed to fight back more”. He could not recall precisely when this was, but believed it was with respect to one of the later statements entered into evidence; either Mr. Wong’s or Mr. Crawford’s;

(d) On yet another occasion she commented, again in passing, “I didn’t see any rubber hoses”. This he understood to be a reference to torture and that she didn’t see him forcing anyone to say anything against their will. It should be noted that the techniques used by Detective Goetz in his interviews of the accused and the effect of those techniques on the reliability of the statements of the accused is very much a live issue in this case.

[6] At issue now is whether, as part of this supplementary inquiry, further questions should be put to juror four, or to all jurors, in light of the new information that has surfaced.

[7] I will not set out counsel’s positions in detail. I will say that their submissions thoroughly covered all possibilities – from conducting no inquiry, to conducting a fulsome inquiry of all jurors. It must be said that all counsel are deeply committed to ensuring that all accused receive a fundamentally fair trial, that justice be done, and that it manifestly be seen to be done.

[8] The issue here is not about the fact that a person attending the trial has publically expressed an opinion about the case, or counsel, or a witness, or the court. That is a common occurrence; unfortunately those opinions are not always positive. The concern is that the person expressing opinions – ones apparently favourable to the police, if not the prosecution – happens to be the spouse of a juror. A reasonable observer would be forgiven for wondering if the spouse expresses the same type of opinions to her husband, the juror. The facts and circumstances here give rise to a taint of suspicion of prejudice to the fair trial of the accused.

[9] The taint must be dealt with. Here are the directions provided by the Court of Appeal in R. v. Snow, 2004 34547 (ON CA), [2004] O.J. No. 4309 in terms of how to proceed:

Where there are allegations of improper contact with the jury during the course of a criminal trial, the trial judge is required to conduct a proper inquiry to determine whether the fairness of the trial has been compromised. The inquiry is part of the trial and the accused must be present: R. v. Hertrich, Stewart and Skinner (1982), 1982 3307 (ON CA), 67 C.C.C. (2d) 510 (Ont. C.A.) at 540 per Martin J.A. An inquiry is required to deal with what the British Columbia Court of Appeal described in R. v. Masuda (1953), 1953 447 (BC CA), 106 C.C.C. 122 at 123 as the "taint of suspicion of prejudice to the fair trial of the accused". That taint must be dealt with and removed, either by a judicial determination that there is no merit to the allegations or by the declaration of a mistrial. As recently explained by Blair J. (ad hoc) in R. v. Afghanzada (2000), 2000 16953 (ON CA), 149 C.C.C. (3d) 349 (Ont. C.A.) at 355:

Both the fact of a fair trial and the appearance of fair trial are essential to the administration of justice. In my view, the inquiry into the incident which was alleged to have occurred here was not adequate to remove that "taint of suspicion of prejudice to the fair trial of the accused" and thus the taint of prejudice to the public administration of justice.

[10] Mr. Cooper submitted that the conduct of the spouse of juror four is so egregious – indeed criminal – that it has destroyed the appearance of justice and fairness of the trial. No inquiry is necessary in his view because nothing juror four might say can repair the damage done.

[11] I consider the conduct of the spouse to be troubling, because of the fact that she is the spouse of a juror. Her comments are not inherently improper or criminal in my view. She has publically expressed opinions, as Canadians are entitled to do. But if she is expressing those opinions to her spouse; if she is interfering with his independence and impartiality as a juror, then of course the situation is significantly more serious.

[12] A supplemental inquiry is warranted. Part of that inquiry has included receiving the evidence of Detective Goetz. Counsel were agreed that the information obtained from the jurors as part of the initial inquiry conducted into interference with the jury would also form part of the record of this supplemental inquiry.

[13] As part of the first inquiry, the following questions were put to juror four:

1. Is your spouse present today?

2. Approximately how many occasions has your spouse attended the trial?

3. Has your spouse passed along information about things going on in the courtroom in the absence of the jury?

4. Has information been conveyed only through texts, or through other means as well, such as face to face conversation?

5. What information have you been given by your spouse?

6. With whom did you share the information and how much has been shared?

7. Has anything you have heard about matters happening in the courtroom in your absence affected your views of any of the accused, their counsel, or the trial process generally?

8. In light of the things you have heard, are you still able to decide this case impartially, and make decisions based solely on the evidence heard in the courtroom and on my legal instructions at the end of the case?

[14] In answering the questions posed to him, juror four indicated that his wife has not provided information to him about the trial through face to face discussions. He confirmed that he does not speak to her about the trial. He outlined the type of information she provided via text messages, and I have outlined that information above. I have no reason to doubt the veracity of juror four.

[15] The facts and circumstances described in evidence by Detective Goetz all appear to have occurred before the first jury inquiry. I expect, therefore, that if the spouse of juror four had made similar comments to him as were made to Detective Goetz, he would have told us about them when questioned, particularly in response to questions four and five, which I have emphasized above.

[16] Nevertheless, so as to thoroughly deal with any taint of prejudice, I believe a further brief inquiry should be made of juror four. I propose putting the following additional questions to him:

Preface: A police officer has provided evidence to the court that your spouse has voiced some opinions in the vicinity of the courtroom that someone hearing her comments might reasonably view as favourable to the police and/or the prosecution. Because of that evidence it is necessary that I ask you several questions in addition to what I asked you last week. The questions I am going to ask you relate only to the functioning of this trial. Before I put my questions to you, I want to tell you that in Canada no spouse may be compelled to disclose any communication made to him or her by his or her spouse during their marriage.[^1] That means you do not have to answer any of the questions I am about to put to you if you choose not to. If you prefer not to answer these questions, you may just say so as I ask them.

Question 1: Are you aware of any comments your spouse has made at the courthouse about any of the participants in this proceeding?

Question 2: Has your spouse expressed any opinions to you about this case, or the people or places involved in it? If so, are you able to provide the details?

Question 3: If the answer to Q2 is yes, have you shared any of those opinions, as expressed by your spouse, with any of your fellow jurors?

Question 4: Are you aware of any direct contact between your spouse and any of the other jurors in this case?

Question 5: Has anything you have heard about this case or the people involved in it, other than from inside the courtroom, affected your views of the accused, any counsel, or the trial process itself?

[17] At present, and subject to any further information provided by juror four, I see no reason to further question the balance of the jurors.

[18] I will hear any further submissions counsel wish to make on my proposed questions tomorrow morning.

Boswell J.

Date: July 24, 2014

[^1]: This comment is meant to address a concern raised by Mr. Sapiano about the application of s. 4(3) of the Canada Evidence Act.