R. v. Manh, 2016 ONSC 7282

CITATION: R. v. Manh, 2016 ONSC 7282

COURT FILE NO.: CR-14-002183

DATE: 20161123

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

KEN MANH

COUNSEL:

Ms. J. Gleitman, for the Crown

Ms. M. Fernandes, for the Defendant

HEARD: November 21, 2016

PUBLICATION RESTRICTION NOTICE

Pursuant to subsection 486.4 of the Criminal Code, there is a ban on disclosing the name of any person involved in the proceedings as a party or a witness or any information likely to identify any such person. This judgment complies with this restriction so that it can be published.

REASONS FOR DECISION

EDWARDS J.:

Introduction

[1] Expect the unexpected. As anyone who has conducted a jury trial can attest to, jury trials are rarely straightforward. This matter involves allegations that Mr. Manh sexually assaulted a 13 year old girl over a period of many months. Before the challenge for cause the jury panel was told about the nature of the charges, and advised that:

If you or someone you know has ever been accused of any offence of this nature, or the victim of such an offence, or otherwise involved in a similar offence or experience…please raise your hand and come to the front of the courtroom.

[2] It is perhaps a sad reflection on the society that we presently live in that a large number of potential jurors did in fact raise their hand and were excused because of their prior knowledge of, or having been involved in, a situation involving allegations of sexual assault.

[3] On the third day of evidence I received a typed noted from one of the jurors, which I reproduce in its entirety as follows:

Your Honour,

Last week Juror #6 shared with the Jury Panel that she has a “close friend” that was accused of Sexual Assault on a girl under the age of 16. She proceeded to tell the panel that the case took up several years of his life (approximately 9 if I remember correctly) and nearly ruined his marriage, stressing that it was a good thing his wife did not leave him. She then went to explain that her friend went through all of this just for it to be concluded that the victim was lying and made up the whole story because “she was told ‘no’ to something and wanted to get revenge.”

I feel that in telling this story, Juror #6 (whether intentionally or not) has influenced the Jury Panel and I am concerned about her presence and further input in the case. Her demeanour on Friday, the second day of trial when S.L. was going to take the stand, was also extremely disturbing when she made a statement about how today would be “quite juicy” as the victim was going to testify. I am not sure what to do in this situation as I feel very uncomfortable hearing this story and other remarks, it has caused me a great deal of stress and anxiety over the course of the weekend as I strongly do not believe Juror #6 could possibly be unbiased towards this case and has possibly already influenced other Jurors.

I have not confronted Juror #6 nor have I shared my feelings and concerns with anyone else in trying to decide what to do with this, so I leave the information in your hands. (Hereinafter the “note”)

[4] Before Court began I provided a copy of the juror’s note with a suggestion as to how the Court should go about dealing with the note. In that regard, I suggested to counsel that the first thing that the Court needed to determine was which juror had actually written the note as it was not signed, nor was there any indication as to the juror number who had authored the note. I then suggested that once the author of the note was determined, that I would bring the author into the courtroom to further explore the contents of the note and determine the extent to which other potential jurors may have participated in the discussion. I then suggested that the Court should bring juror number six into the courtroom, so that juror six could respond to the allegations made in the note and determine whether there were any further discussions of a similar nature.

[5] I also suggested to counsel that all of the jurors should then be brought into the courtroom individually to determine the extent to which they had heard the details of the information contained in the juror note, and whether or not there were any discussions of a similar nature. I also suggested that all of the jurors, including juror number six and the author of the note, should be questioned as to whether or not the details of the conversation reflected in the note would in any way influence their ultimate decision, and whether or not each juror would be capable of abiding by their oath or affirmation and that they would decide the case solely on the basis of the evidence at trial and the legal instructions that I would give them at the end of the trial.

[6] Counsel agreed with my suggested course of action and it was determined that juror number twelve was the author of the note, and she indicated that the conversation that had been precipitated by juror number six, reflected in the note, had made her feel very uncomfortable. She confirmed, as did all of the jurors who were brought into the courtroom, that the information provided by juror number six reflected in the note would not influence their ultimate decision in this case. All of the jurors separately confirmed that they could decide the case in accordance with their oath or affirmation solely on the basis of the evidence given at trial and my instructions on the law.

[7] During the course of the separate enquiries made of each of the jurors, most of them confirmed that there was the discussion precipitated by juror number six reflected in the note, but some of the jurors stated that they did not hear it. Once I informed them about the contents of the note, specifically paragraph one, those jurors who had not heard the discussion stated that having heard it now they would not be influenced by it.

[8] The enquiries that were made of each of the jurors were done solely by myself. I enquired of counsel as to whether or not there were specific questions that they wished me to put directly to the jurors, and for the most part I agreed with their suggestions. There were a number of questions which Ms. Fernandes asked that I put to some of the jurors that I was not prepared to put, as in my view they were very close to putting the jurors in a position where they may have to disclose discussions that related specifically to the evidence. I made it very clear to each of the jurors that in terms of answering the questions that I was putting to them, that they were not to provide any information that would reveal any of the discussions that they may have had as it relates to the evidence in the case.

[9] Having enquired of each of the jurors about their ability to decide the case uninfluenced by the information contained in the juror note and the discussion precipitated by juror six, I enquired of counsel as to their suggested course of action. Ms. Gleitman for the Crown advised that she was not seeking a mistrial provided juror number six was discharged. Ms. Fernandes argued that juror number six should not be excused from the jury because she assured the Court that she could decide the case solely on the basis of the evidence and my legal instructions. Conversely, Ms. Fernandes argued that juror number twelve, the author of the note, should be excused from jury duty as she demonstrated a bias against the possibility that in fact the victim in this case might be lying.

Analysis

[10] Section 644 of the Criminal Code provides the jurisdiction to a trial judge to conduct an inquiry to determine whether there is reasonable cause to dismiss a juror. Section 644(1) provides “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).

[11] In Basarabas v. The Queen, (1982) 1982 CanLII 216 (SCC), 2 C.C.C. (3d) 257 (SCC), at 264 Dickson J., (as he then was), stated: “An accused should not be lightly deprived of his or her right to be tried by a jury of twelve persons”. Where, however, in situations the trial judge determines that there is reasonable cause why a juror should not continue to act, section 644 makes it quite clear that the trial judge has the discretion to remove a juror from further participation in the trial.

[12] In terms of the process that the Court should use in the determination of whether a juror has demonstrated reasonable cause that would result in his or his discharge, the Court of Appeal in R. v. Giroux, 2006 CanLII 10736, provides guidance in terms of the process that a trial judge should use. The process should take place in open court and should not be an adversarial one. Counsel do not have the right to put questions to a juror directly, but can suggest questions that the judge might put to him or her and make submissions on the issue. While I did not have Giroux brought to my attention prior to dealing with the process in this case, the process that in fact unfolded was largely in accordance with the suggestions provided by the Court of Appeal in Giroux.

[13] In Giroux, the Court of Appeal stated:

Nor is there any doubt cases involving internal strife amongst jurors pose particularly problematic issues, and must be dealt with in a careful and sensitive fashion – as the trial judge did here. It is imperative that neither the court, in addressing the situation, nor the jury, in responding to it, violates the rule preserving the confidentiality of jury deliberations…

[14] As far as the ability of the trial judge to discharge a juror in accordance with section 644 of the Criminal Code, the Court of Appeal in Giroux stated:

…In my view, the answer to this issue is in the language of section 644 of the Criminal Code itself. The trial judge has the discretion to discharge a juror in the course of a trial – which clearly includes during deliberations - where satisfied that the juror ‘should not, by reason of illness or other reasonable cause’, continue to act”. This language is broad enough to encompass a situation where the conduct of a juror threatens to interfere with the integrity of the jury process and the ability of the jury to carry out its deliberations in such cases.

[15] As to how a trial judge should conduct an enquiry that is precipitated by the type of note quoted in paragraph three above, the Court of Appeal at paragraph 35 of Giroux stated:

The process adopted by a trial judge in such circumstances should comply with at least the following considerations, in my opinion (the list is not intended to be exhaustive). The process:

a) must be fair to the parties and to all members of the jury;

b) must be open, in the sense the trial judge’s enquiries should take place in open court, on the record, and in the presence of the accused and counsel;

c) must enable to trial judge to determine the true nature of the internal problem faced by the jury, and to resolve it; and,

d) must preserve the integrity, confidentiality and impartiality of the jury deliberation process.

[16] Having conducted the enquiry that I did in this case, I am satisfied that juror number twelve should remain as a juror in this case. In my view, what juror number twelve did was precisely what a jury is told in a trial judge’s preliminary instructions, i.e.:

Please tell me, however, about anything that may affect your ability to do your job as jurors in this trial. If something happens please write it down, put it in a sealed envelope and deliver it to the Matron or Constable, who will give it to me for consideration.

In my view, what juror number twelve did was what any trial judge would expect from a juror in a similar situation, that is, to bring to the attention of the trial judge discussion precipitated by another juror that has absolutely nothing to do with the evidence during the course of a trial, and which could fundamentally affect the outcome of the jurors’ deliberations.

[17] As for the conduct of juror number six, I have excused juror number six as I am satisfied that there is “reasonable cause”, to adopt the language of section 644 of the Code, that juror number six – despite her oath or affirmation, could be influenced by what had happened to her “close friend” who had been apparently falsely accused of sexual assault of a girl under the age of 16.

[18] As well, juror number six failed, in my view, to comply with the preliminary instructions that I gave to the entire jury panel prior to the challenge for cause. Specifically, juror number six did not bring to the Court’s attention the fact that she knew of the “close friend” who had been accused of sexual assault on a girl under 16. Her knowledge of this close friend’s situation should have been brought to the Court’s attention, at which point in time she - like many others, would have been excused from jury duty. The fact that she did not bring this to my attention demonstrates, in my view, an inability to follow instructions and thus calls into question her ability to abide by her oath or affirmation to decide the case solely on the basis of my legal instructions and the evidence given at trial.

[19] After I had discharged juror number six I brought the remaining eleven jurors into the courtroom, and reminded them of their obligation to decide the case solely on the evidence that had been given and my instructions, in accordance with the oath that they had taken at the beginning of the trial.

Justice M.L. Edwards

Released: November 23, 2016

CITATION: R. v. Manh, 2016 ONSC 7282

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Ken Manh

REASONS FOR DECISION

Justice M.L. Edwards

Released: November 23, 2016