CITATION: R. v. Papasotiriou-Lanteigne, 2017 ONSC 6484

COURT FILE NO.: CR-14-10000717

DATE: 20171031

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

DEMITRY PAPASOTIRIOU-LANTEIGNE and MLADEN (MICHAEL) IVEZIC

Applicants

H. Goody, A. Tenhouse & P. Santora, for the Respondent/Crown

Gabriel Gross-Stein, for Mr. Papasotiriou

Marcy Segal, for Mr. Ivezic

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT – APPLICATION TO EXCLUDE SWORN JURORS

BACKGROUND

1Mr. Papasotiriou and Mr. Ivezic are charged with first degree murder. The facts are summarized in my Reasons for Judgment on the alternate suspect application: R. v. Papasotiriou and Ivezic, 2017 ONSC 6251.

2The defence seeks to challenge potential jurors for cause. The potential jurors will be asked whether their ability to judge the evidence without bias or partiality would be affected by the sexual orientation of the accused.

3The truth of the challenge is to be determined by rotating triers. Neither accused has brought an application for static triers. Mr. Gross-Stein, on behalf of Mr. Papasotiriou, applies to have the sworn and unsworn jurors (except for the sworn jurors who will determine the truth of the challenge) excluded from the courtroom. He argues that I have the jurisdiction to do so. He also argues that I should do so in order to prevent jury tainting. It will also prevent the sworn jurors from having to spend many hours in court waiting for jury selection to be completed, something that could take as long as a week.

4Ms. Segal’s position, on behalf of Mr. Ivezic, is that I should exclude the unsworn jurors but that the sworn jurors should remain in the courtroom. She argues that it is important to maintain the integrity of the process. The case law is not clear that a judge retains the jurisdiction to exclude sworn jurors where the truth of the challenge for cause is determined by rotating triers.

ISSUES AND ANALYSIS

5The two issues to be determined here are:

(a) Do I have discretion to exclude sworn jurors?

(b) Should I exercise my discretion to exclude the sworn jurors?

(a) Do I have discretion to exclude sworn jurors?

6Crown counsel, Mr. Goody, argues that the question of whether there is jurisdiction to exclude sworn jurors is not settled. He acknowledges that there are cases in this Court and appellate authorities from other provinces that hold that a trial judge may exclude sworn jurors. He says, however, that the latest case from our Court of Appeal indicates that no such authority exists: R. v. Murray, 2017 ONCA 393.

7I respectfully disagree. In my view, a trial judge has authority at common law to exclude the sworn jurors where rotating triers determine the truth of the challenge for cause.

8The statutory authority for rotating triers is found in s. 640(2) of the Criminal Code. That section prescribes the method for choosing the triers. It simply states that the two jurors who were last sworn will determine the truth of the challenge for cause (unless no jurors have been sworn, in which case two other persons will determine the first challenge). The subsection says nothing about whether the sworn or unsworn jurors remain in or out of the courtroom: R. v. Murray, 2017 ONCA 393 at para. 42. There is no question, however, that a trial judge has the authority at common law to exclude unsworn jurors (in other words, the jury panel) where rotating triers determine the truth of the challenge: R. v. Grant, 2016 ONCA 639 at paras. 32-33.

9Appellate authorities in other provinces have found that there is common law authority to exclude the sworn jurors.

10In R. v. Swite, 2011 BCCA 54, 268 C.C.C. (3d) 184 the accused sought to challenge potential jurors for cause. He did not make an application for static triers. He wanted rotating triers. The trial judge was under the impression that as a result of the 2008 amendments to the Criminal Code (the amendments that added the static trier process) he was required to use that procedure. He ordered that the panel be excluded for the challenge for cause procedure. The sworn jurors, however, remained in the courtroom after being chosen. Prowse J.A., in her reasons, noted: “… it is undisputed that prior to the 2008 amendments, a trial judge had inherent jurisdiction to exclude either sworn or unsworn jurors during the challenge for cause process…” Although this was arguably an obiter comment, it is notable that Prowse J.A. found that it was “undisputed”.

11In R. v. English, 1993 CanLII 3373 (NL CA), [1993] N.J. No. 252, 84 C.C.C. (3d) 511 (C.A.) the accused was a Christian Brother charged with historic sexual offences against young people. The scandal involving the Christian Brothers was quite notorious in Newfoundland, and indeed throughout Canada. The challenge for cause was based on pre-trial publicity. The unsworn jurors – the panel – remained outside the courtroom while the truth of the challenge was determined for each individual unsworn juror. The sworn jurors remained in the courtroom. On appeal, the accused argued that he was prejudiced because the sworn jurors heard comments and evidence during the challenge for cause process that tainted them. There seems to have been no question that all parties accepted that the trial judge could have excluded the sworn jurors – the only issue was whether he should have. Chief Justice Goodridge made the following comments at paras. 120-21, 123-26:

The second point raised by counsel for the appellant was that the jurors as selected remained in the courtroom while subsequent prospective jurors were examined. Many of these, of course, were found to be partial and their partiality was determined by the remarks which they made. Counsel contended that these remarks had the potential to influence the jurors in their decision.

The Criminal Code is silent on the question of whether the prospective jurors or the selected jurors should remain in court during the questioning of each prospective juror on a challenge for cause. In this case the prospective jurors remained out of the court room but the selected jurors remained in the court room and could hear the questions and answers. They all of course had been subjected to basically the same type of questioning and must have known by the nature of the very process that some of the jurors would be partial. It should not surprise them therefore that some opinions adverse to the appellant might be expressed...

Each pair of jurors trying a prospective juror will hear some adverse statements. If selected jurors not trying a prospective juror remain in court, they will hear all of the adverse statements, if any, made by subsequent prospective jurors.

If the chosen jurors not trying prospective jurors are excluded from court while remaining prospective jurors are being selected, the successive pairs of triers must necessarily remain.

The only result of exclusion is that fewer jurors will hear the adverse statements. It is a matter of degree. From a legal point of view, if exposure of jurors to adverse views contaminates the jury, the contamination is no less complete by the fact that some jurors are less contaminated than others.

While it would be preferable that the chosen jurors except the triers remain out of court while subsequent jurors are picked, it is not a legal requirement. [emphasis added]

12English was decided before the 2008 amendments to the Criminal Code that permitted static triers as a method of determining the truth of a challenge for cause. It is clear that the amendments did not affect change the discretion to exclude unsworn jurors when rotating trier are used: Grant at para. 16; Murray at para. 53.

13In R. v. Teng, 2017 ONSC 675, MacDonnell J. of this court excluded sworn and unsworn jurors on his own motion. He was concerned that sworn jurors could be prejudiced based on several factors, including Ms. Teng’s behaviour. He addressed his jurisdiction to excluded sworn as well as unsworn jurors as follows:

The Criminal Code is silent with respect to whether prospective jurors and sworn jurors, other than the triers, are to be in the courtroom for the entirety of the challenge for cause process where rotating triers are used. However, it is well-recognized that so long as any orders that are made do not contradict the requirements of the Code, a trial judge has the power to control the jury selection process to make effective use of court resources and ensure fairness to all parties: R. v. Noureddine and Sheridan, 2015 ONCA 770 at para. 38. It is firmly established that this power includes discretion to exclude prospective jurors from the challenge for cause process: R. v. Moore-McFarlane, 2001 CanLII 6363 (ON CA), [2001] O.J. No. 4646 at paragraph 85 (C.A.), and there is a persuasive body of authority in the Superior Court that it includes discretion to exclude sworn jurors after they have completed their role as triers…

14In R. v. Daley, 2015 ONSC 7264 Fairburn J. (as she then was) noted that there is an “ongoing debate” about the inherent jurisdiction of the court to exclude sworn and unsworn jurors during the challenge for cause process. She ultimately determined that she had the inherent jurisdiction to exclude sworn and unsworn jurors: paras. 40-41.

15See also: R. v. Millard and Smich, 2015 ONSC 6582.

16Mr. Goody relies on the latest judicial comment from the Ontario Court of Appeal on this matter. In Murray, supra, Watt J.A. made the following comment at para. 54:

Although the point did not arise in Grant, some courts have held that this discretion to exclude unsworn prospective jurors when the truth of the challenge for cause is tried by rotating triers extends to sworn jurors who are not acting as triers: Swite, at para. 28; R. v. English… [citations omitted]

17Watt J.A. then went on to note at para. 60 the options available for a challenge for cause:

In fact, there are three options available for the trial of a challenge for cause:

i. rotating triers with the unsworn prospective jurors remaining in the courtroom;

ii. rotating triers with the unsworn prospective jurors excluded from the courtroom; or

iii. static triers with both sworn and unsworn prospective jurors excluded from the courtroom.

18Mr. Goody argues that Watt J.A.’s comment at para. 54 combined with the options set out at para. 60 mean that the Court of Appeal has determined that a trial judge does not have the inherent jurisdiction to exclude the sworn jurors (other than the triers) where rotating triers are used. Tseng, Daley, Millard, and other cases decided in the Superior Court all came before Murray, which is the latest word.

19This argument is not without merit. Watt J.A.’s decision is capable of being read as Mr. Goody suggests. As well, there is a principled argument that can be made: excluding the sworn jurors serves the purpose of insulating them from possible taint by comments or opinions of unsworn jurors during the challenge process. If there is a real danger of taint, then defence counsel, who is in the best position to make that decision, can invoke the explicit statutory mechanism and apply for static triers with sworn and unsworn jurors excluded.

20In my respectful view, however, Murray does not decide this issue. The Court of Appeal has had ample opportunity to cast doubt on the principle that sworn jurors can be excluded and has not done so. In Murray, Watt J.A. referred to Swite and English without casting doubt on their correctness. Moreover, in R. v. Sheridan and Noureddine, 2015 ONCA 770, 2015 ONCA 5916, 332 C.C.C. (3d) 114 Doherty J.A. referred with approval to Swite, supra, at para. 38:

The trial judge also referred to his "inherent jurisdiction". It is unclear whether he regarded that jurisdiction as the source of his power to make an order for the use of static triers, an order for the exclusion of all jurors, sworn and unsworn, from the challenge for cause process,² or both. The trial judge's power to control the jury selection process to make effective use of court resources and ensure fairness to all parties is well-recognized: see R. v. Moore-McFarlane, at para. 85 (C.A.). That authority does not, however, extend to orders that contradict the requirements of the Criminal Code: see R. v. Swite, at para. 28; R. v. W.V., at para. 22…

21Paragraph 28 of Swite is the paragraph that I referred to earlier noting that a trial judge has the authority to exclude sworn jurors where rotating triers are used.

22I read Watt J.A.’s three options in Murray as simply applying to the facts of that case. Moreover, I can think of no principled reason why a trial judge has the inherent power to exclude unsworn jurors where a fair trial requires it, but no power to exclude sworn jurors even though a fair trial requires it. It is clear that trial judges have discretion where the Criminal Code does not directly address an issue, as Doherty J.A. points out in Sheridan and Noureddine at para. 38. See also: R. v. W.V., 2007 ONCA 546, [2007] O.J. No. 3247 at para. 21; Tseng, supra, at para. 3.

23I conclude that I have the discretion to exclude the sworn jurors. I turn now to the question of whether I should.

(b) Should I exercise my discretion to exclude the sworn jurors?

24Mr. Gross-Stein argues that I should exclude the sworn jurors because of the prospect of tainting. The challenge for cause question deals with the sexual orientation of the two accused men. That is somewhat different from the usual challenge for cause question.

25Mr. Gross-Stein fairly acknowledges that the tainting argument is not particularly strong. He is right. I do not see a realistic prospect that sworn jurors will be tainted during the process. Any prospect that unfavourable views about gay or bisexual people will be expressed during the challenge for cause process can be dealt with by way of a strong warning.

26Mr. Gross-Stein also argues that I should exclude the sworn jurors for reasons of trial efficiency. I agree. Three panels were used for this jury trial. One panel was brought in each day over three days. The accused were arraigned before each panel. The unsworn jurors were then divided into groups of 20. The groups will be returning staggered over the course of 6 court days. There are over 600 unsworn jurors returning. There is a very large number of jurors returning because experiences teaches us that with a three-month trial (where many jurors simply cannot serve) and 80 challenges in total (twenty for each accused plus the Crown) we need that many potential jurors to ultimately select 12 jurors and 2 alternates.

27If I do not exclude the sworn jurors they will be required to sit in court doing nothing as the process unfolds over many days. In my view once a juror has been selected and done their as a trier it is entirely unnecessary for that juror to remain in the courtroom for up to six days for no discernable reason. In my view, having sworn jurors sit idly for as much as a week while the rest of the jury is picked will almost certainly diminish respect for the process. It will undoubtedly cause jurors to question the legitimacy of the jury trial system itself. Jurors will wonder, rightly, what kind of a system is so cavalier with their time. MacDonnell J. came to the same conclusion in Teng, supra, at paras. 8-9. So did Fairburn J. (as she then was) in Daley, supra, at para. 42.

DISPOSITION

28The unsworn jurors will be excluded from the courtroom during the selection process. The sworn jurors will be excluded until the process of selecting a jury is complete.

R.F. Goldstein J.