R. v. Xiu Jin Teng, 2017 ONSC 675

CITATION: R. v. Xiu Jin Teng, 2017 ONSC 675

DATE: 20170130

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

XIU JIN TENG

Joshua Levy and Robert Fried, for the Crown

Xiu Jin Teng is self-represented

Ruling re Challenge for Cause Procedure

MacDonnell, J.

[1] On November 15, 2016, I ruled that for the purpose of the challenge for cause process the panel of prospective jurors would be excluded from the courtroom. I further ruled that, after completing their duties as triers, sworn jurors would also be excluded. I provided oral reasons for that ruling at the time, and indicated that I would expand on those reasons in writing. I have done that in what follows.

[2] The defendant wishes to challenge prospective jurors for cause on the basis of pretrial publicity and racial bias. She has not brought an application under s. 640(2.1) of the Criminal Code for the use of static triers and accordingly the rotating trier procedure set forth in s. 640(2) is mandatory.

[3] 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 paragraph 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 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: see, e.g., R. v. Daley, 2015 ONSC 7264; R. v. Millard, 2015 ONSC 6582; R. v. Huard, (2009), 2009 39058 (ON SC), 247 C.C.C. (3d) 526. See also R. v. White, 2009 42049 (ON SC), [2009] O.J. No. 3348, at paragraph 1 (S.C.J.).

[4] In practice, the discretion to exclude prospective and/or sworn jurors is usually exercised at the request of the defendant, but that is not to say that its exercise depends on such a request. The discretion is part of the court’s inherent jurisdiction to manage the processes before it to ensure, among other things, a fair trial. As such, it would be incongruous to hold that it can only be exercised if the defendant requests it.

[5] I am of the view, for the reasons set out below, that this is a case in which the interests of justice require that I exercise the discretion on my own motion.

[6] First, the challenge for cause is based in part on pretrial publicity. If the prospective jurors are present in the courtroom during the process, there is a realistic danger of exposure to prejudicial information that might emerge, perhaps unexpectedly, in the process. That danger would also be present if sworn jurors remain after their task as triers is complete. Accordingly, an order excluding both prospective and sworn jurors would help to ensure an impartial jury.

[7] Second, Ms Teng has repeatedly taken the opportunity to respond to inquiries made of her by the court to assert that requiring her to proceed to trial without a lawyer is unfair, unlawful and an abuse of process. While I hope that she will follow my direction not to make such remarks in front of prospective and sworn jurors, I am concerned that on occasion she may fail to do so, requiring a curative instruction.[^1] An order excluding both prospective and sworn jurors will limit the number of jurors who might need such an instruction.

[8] Third, there is the issue of managing a challenge for cause process with 200 or more jurors in a court room with insufficient seating. To require the panel to remain all day and perhaps for several days for the tedious process of waiting for their turn to come forward and then, if they are sworn as jurors, to remain while perhaps a hundred more prospective jurors go through the same process, is apt to diminish respect for the process: R. v. White, supra, at paragraph 14; R. v. Millard, supra, at paragraph 35.

[9] Accordingly, I direct that prospective jurors be excluded from the courtroom during the challenge for cause process. The panel will be grouped and directed to return at appropriate times to participate in jury selection. Further, after sworn jurors have completed their duty as triers, they will be excluded until the selection process is complete.

MacDonnell, J.

Released: January 30, 2017

[^1]: As it turned out, on a number of occasions during the jury selection process Ms Teng did make such remarks in the presence of the triers and prospective jurors.