COURT FILE NO.: 11-09099G

DATE: 20140811

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Jennifer Pan, David Mylvaganam, Eric Shawn Carty, Daniel Chi-Kwong Wong and Lenford Roy Crawford

Defendants

Rob Scott, for the Crown

Paul Cooper and Jeffrey Fisher for Jennifer Pan
Peter Bawden for David Mylvaganam
Edward Sapiano for Eric Shawn Carty
Lawrence Cohen and Erin Dunsmore for Daniel Chi-Kwong Wong
Darren Sederoff and Brian Micner for Lenford Roy Crawford

HEARD: July 25, 2014

ruling on applicatioN to discharge A juror

Boswell J.

[1] Five accused persons stand jointly charged with first degree murder. Jury selection for their trial began on February 10, 2014. The evidentiary portion of the trial commenced March 19, 2014, some 4 ½ months ago. The spouse of one of the jurors has attended much of the trial proceedings, curious as to the process her husband has been engaged in. Her conduct has given rise to an application by four of the accused to discharge her spouse from the jury. The fifth accused seeks a mistrial.

A Brief History of the Application

[2] This application is the product of an evolutionary process. Its genesis is found in a letter written to the court by the jury on July 11, 2014. In the letter, the jury advised the court that the spouse of one of the jurors had been regularly attending the court proceedings and had provided the juror, by text messages, with information about the case that was shared with some of the other jurors. The jury indicated to the court that they had discussed the issue at length, had concluded that the information shared was immaterial, but nevertheless thought it best to bring the issue to the attention of the court.

[3] In view of the spouse’s improper contact with the jury, an inquiry was conducted. Juror number four (“J4”) was identified as the juror whose spouse passed along information by text message. All jurors were questioned in the course of the inquiry. The form and substance of the questioning was arrived at after consultation with counsel. The questioning revealed that the following information had been conveyed by the spouse of J4 and shared with one or more jurors:

(a) An upcoming witness had large breasts;

(b) The court was delayed on one occasion because of the late arrival of a witness;

(c) The court was delayed on another occasion because of the late arrival of one of the lawyers;

(d) The court was delayed on a further occasion because Mr. Carty did not receive a sandwich; and,

(e) An upcoming witness was going to be Hana Omar.

[4] The initial inquiry led to mistrial applications by Ms. Pan and Mr. Carty. Both were dismissed for reasons set out in a written decision released as 2014 ONCA 4287.

[5] On the heels of the initial inquiry, additional information came to light involving the spouse of J4. The additional information related to comments and gestures the spouse purportedly made in the hallway outside of the courtroom, principally to a significant Crown witness, Detective William Goetz. Detective Goetz has been an important witness in this trial. He conducted a number of interviews of persons central to the investigation and has testified on several occasions during the trial with respect to those interviews. He has been cross-examined at length. Defence counsel have taken him to task about some of the interviewing techniques he used. The reliability of statements made to him is very much a live issue in this case.

[6] A further inquiry was organized. A voir dire was conducted that included receiving oral evidence from Detective William Goetz. In addition, further brief questions were put to J4 in open court.

[7] Detective Goetz testified that J4’s spouse has interacted with him in the courthouse hallway on several occasions. He was not aware that she was the wife of a juror. He described their interactions as including the following:

(a) On one occasion after one of Jennifer Pan’s videotaped statements was played in court, he was on his way from the courtroom to the elevator. J4’s spouse was about to enter the elevator. She turned towards him and she made a clapping motion, which he understood to mean she was applauding his work in the interview of Jennifer Pan;

(b) On another occasion she told him in passing outside of the courtroom that he has a lot of patience. He could not recall the exact date of this comment;

(c) On a third occasion, after cross-examination by one or more defence counsel, J4’s 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; and,

(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.

[8] Following the testimony of Detective Goetz, the court heard submissions from counsel about what, if any, questions ought to be put to J4 and/or any of the other jurors. I settled on the following questions, to be put to J4 only, for reasons set out in an endorsement dated July 24, 2014 and released as 2014 ONSC 4455:

(a) Are you aware of any comments your spouse has made at the courthouse about any of the participants in this proceeding?

(b) 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?

(c) If the answer to Question 2 is yes, have you shared any of those opinions, as expressed by your spouse, with any of your fellow jurors?

(d) Are you aware of any direct contact between your spouse and any of the other jurors in this case?

(e) Has anything you have heard about this case or the people involved in it, other than from inside the courtroom, affected your views of Crown counsel, defence counsel, any of the accused, or the trial process itself?

[9] J4 was not sworn on the inquiry, for the same reasons set out in my earlier mistrial ruling. Jury inquiries are not a typical adversarial proceeding. It is preferable, in my view, that jurors not be sworn on such inquiries: see R. v. Hanna, 1993 1425 (BC CA), [1993] B.C.J. No 961 (B.C.C.A.) at paras. 84-86; and R. v. Giroux, 2006 10736 (ON CA), [2006] O.J. No 1375 (C.A.).

[10] J4 advised the court that he was not aware that his wife had made comments at the courthouse about any of the participants in the proceeding. He confirmed that she had not expressed any opinions about the case to him. He did say that his wife had had some direct contact with one other juror. One of the other jurors apparently lives near his home and they have carpooled to the courthouse at times. He did not observe his wife discussing the case with the other juror. Finally, he confirmed that nothing he has heard about this case from outside of the courtroom has affected his view of the process or any of the participants.

Positions of the Parties

[11] Before commenting on the parties’ various positions, I want to repeat that this jury inquiry was not a typical adversarial proceeding. Counsel had an opportunity to make submissions about what, if any, remedial action should be taken. While their submissions differed, all were based on a genuine concern for the integrity of the process and ensuring that the accused receive a fundamentally fair trial.

[12] Mr. Cooper, on Ms. Pan’s behalf, has been consistent in his position that nothing short of a mistrial will suffice in the circumstances of this case. His view is that the damage to the trial process – to the appearance of justice and fairness – has been irreparable since the moment the jury advised that J4’s spouse had had improper contact with them. A more fulsome review of his position was set out in my earlier ruling on the mistrial application and I will not repeat it here. Suffice it to say that he urges the court to conclude that the conduct of J4’s spouse is criminal in nature; that J4 participated in it; and that the resultant taint is irreparable.

[13] The balance of defence counsel joined in a request that J4 be discharged. None is asserting actual prejudice to their respective clients, but all agree that the conduct of J4’s spouse reflects a clear bias towards the police and/or prosecution. None is confident that she is not expressing similar views to her husband, the juror, thereby giving rise to a reasonable apprehension of bias. All view the spouse’s actions as tainting the trial process and as undermining the appearance of justice and fairness. All assert that it is now necessary to discharge J4 in order to eliminate the taint.

[14] The Crown takes a different position. The Crown’s view is that J4 was credible when he said that he did not discuss the case with his wife and that she has not expressed her opinions to him. In other words, regardless of what statements or gestures the spouse has made at the courthouse, J4 has not been subjected to them. There is no basis on which to find that the presumption of independence and impartiality has been rebutted. At the end of the day there has been no improper interference that would justify the discharge of J4.

The Legal Framework

[15] In the initial jury inquiry, with its subsequent mistrial application, the mischief in issue was readily identified. A juror had improperly received information about the case from his wife and he shared it with some of the other jurors.

[16] Where there is an allegation of improper contact with the jury, the law is clear. The court must, in such circumstances, conduct a sufficient inquiry to assess whether the contact has undermined the independence and/or impartiality of the jury giving rise to a reasonable apprehension of bias, or whether it has otherwise impaired or compromised trial fairness: R. v. Snow, 2004 34547 (ON CA), [2004] O.J. No. 4309 (C.A.). The goal of the inquiry is to deal with the “taint of suspicion of prejudice to the fair trial of the accused.” (Snow, para. 36).

[17] In the context of this second juror inquiry, however, the mischief is perhaps slightly more opaque. It is always improper for someone to provide information to jurors about trial-related events transpiring outside of the presence of the jury. By contrast, there is nothing inherently improper about a member of the public attending court and expressing opinions in the hallway about what he or she has seen or heard in the courtroom. But when the person attending court and expressing opinions, evidently more favourable to one side than the other, is the spouse of a juror, then it seems to me that at least two concerns arise:

(a) First, does the spouse’s conduct - the public expression of opinions seemingly favourable to the prosecution - give rise to a reasonable apprehension that her spouse will no longer be able to decide this case in an independent and impartial manner?

(b) Regardless of whether a reasonable apprehension of bias arises, does the public expression by a juror’s spouse of opinions more favourable to one side than the other threaten the integrity of the trial process by undermining the appearance of justice and fairness?

The Reasonable Apprehension of Bias Test

[18] It is important, as courts have so often said, that juries should not only be impartial, but they must manifestly be seen to be impartial: see R. v. Andrews (1984), 1984 809 (BC CA), 13 C.C.C. (3d) 207 (B.C.C.A.); and, of course, R. v Sussex Justices, Ex parte McCarthy, [1924] 1 K.B. 256, [1923] All E.R. Rep. 233.

[19] Juries begin, however, with a presumption of independence and impartiality: R. v. Burke, 2002 SCC 55, para. 65. Like any presumption, it is rebuttable.

[20] Proof of actual bias is not required to rebut the presumption. In the face of an assertion that a decision-maker may no longer be impartial, the court must determine whether the circumstances of the case give rise to a reasonable apprehension of bias.

[21] The applicable standard is whether there is a real possibility that a reasonable person, fully informed and acting realistically and practically, could conclude that the juror may well be prone to bias: see R. v. R.D.S., 1997 324 (SCC), [1997] 3 S.C.R. 484, at para. 111; Committee for Justice and Liberty v. National Energy Board, 1976 2 (SCC), [1978] 1 S.C.R. 369, at p. 394; and R. v. Wolfe (2005), 2005 BCCA 307, 197 C.C.C. (3d) 486 (B.C.C.A.) at paras. 7-9.

The Appearance of Justice and Fairness

[22] The year 1923, like much of that decade, was an eventful one. The U.S.S.R. was formed. Insulin became generally available for the treatment of diabetes. The New York Yankees won their first World Series. And Lord Chief Justice Hewart penned what may very well be the most frequently quoted phrase in the history of jurisprudence: “it is …of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”: R. v Sussex Justices, Ex parte McCarthy, as above.

[23] The same standard articulated by Hewart L.C.J. may be found in abundance in Canadian appellate jurisprudence dealing with the issue of what I will loosely call juror contamination.

[24] The British Columbia Court of Appeal incorporated the standard clearly in R. v. Musada (1953), 1953 447 (BC CA), 106 C.C.C. 122, where the salient facts of the case and the ratio for overturning the conviction of the accused were succinctly set out in one paragraph:

Stripped to its bare essentials, there can be no escape from the fact that three Crown witnesses dined with the jury during a murder trial. It seems to me that to countenance such a situation as is thus presented violates two essentials of justice. The one is that the jury must be kept completely free from any opportunity of communication during the trial, except under the most exceptional circumstances calling for a direction from the court; and, secondly, that nothing must occur during the trial of a case from which a suspicion may arise that any taint attaches to the proper and meticulous fairness which must always surround the administration of public justice, more especially when a man is on trial for his life. (para. 7).

[25] In R. v. Afghanzada, [2000] O.J. No. 422, defence counsel in a sexual assault trial raised a concern with the trial judge that the officer in charge of the investigation against the accused was seen talking with jurors in the public hallway during a break in the proceedings. The accused was subsequently convicted. The conviction was overturned on the basis that the trial judge had not conducted a sufficient inquiry to properly assess whether there had been any improper discussions that may have compromised trial fairness. Justice Blair observed, at para. 15,

Both the fact of a fair trial and the appearance of a 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.

[26] Similar views had been earlier expressed by the Court of Appeal in R. v. Cameron, 1991 7182 (ON CA), [1991] O.J. No. 415 (C.A.). There, the accused was on trial for murder. During deliberations, the jury had dinner in a local restaurant. Twenty-two people attended the dinner, including the 12 jurors and two sworn court constables, plus three additional unsworn court constables, the court registrar, the court reporter, a sheriff's deputy, a sheriff's officer in charge of prisoner control and a uniformed city police constable who was a "close" first cousin of the victim in the murder case.

[27] In ordering a new trial, Labrosse J.A. held, at para. 22:

Where the events in question are so serious as to affect the administration of justice…then the focus turns upon the justice system and the miscarriage of justice occurs whenever the confidence of the public in the system is shaken; that confidence is equally shaken by the appearance as by the fact of an unfair trial.

[28] More recently, in R. v. Snow, 2004 34547 (ON CA), [2004] O.J. No. 4309, the Court of Appeal directed that whenever there is an allegation of juror contamination, the trial judge must conduct an inquiry suffic