COURT FILE NO.: 17-5-354CR
DATE: 20180530
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
TRE ROBERTS-STEVENS
Defendant/Applicant
COUNSEL:
Rob Kenny and Jim Cruess, for the Crown
Marcus Bornfreund and Norman Stanford, for the Defendant/Applicant
HEARD: April 16, 2018
BEFORE: Michael G. Quigley J.
RULING ON JUROR 11 DISCHARGE
[1] In advance of the commencement of the trial of the accused, we continued on April 16 with the challenge for cause jury selection, with rotating triers, that commenced on Friday, April 13. By the end of Friday, nine jurors had been selected, and 66 jurors excused.
[2] We continued the process on Monday April 16., Juror number 10 was selected. Juror number 11 came into the court for the challenge for cause question. He was asked by court staff whether he had any issues of health or personal hardship to raise with me that would prevent him from serving as a juror on this case. Potential juror number 11 is an electrician. He responded that he had no issues of health or personal hardship to raise that would prevent him from serving.
[3] After answering the challenge for cause question, potential juror number 11 was found to be acceptable by the triers, and both counsel were content with his selection as juror number 11. Accordingly, he was sworn as a juror and sworn as a trier for the next juror. He took his seat in the jury box.
[4] Potential juror number 12 was brought into the courtroom. The triers, juror number 10 and juror number 11, found her to be an acceptable juror, but she was challenged by the defence. The next potential juror, was found not to be acceptable by the triers. The next two potential jurors were excused because of personal hardship circumstances.
[5] Juror number 11 had been potential juror, #5 in Panel E selected this morning. It was only as we were about to have potential juror # 10 from Panel E brought into the courtroom, that Juror 11 rose to speak to me about a problem.
[6] Juror number 11 advised that not only was he an electrician, but that in fact he was an electrician foreman. He explained that he had responsibility for particular electrical projects for his employer, Panasonic, and for the training of groups of apprentices who train under the auspices of the foreman. He advised that he could not serve on this jury because he is required to be present as a foreman on the jobsite, there being no replacement foremen available, and that if he was not present, work could not continue because the apprentices are precluded from performing tasks as electricians unless under the supervision of a foreman.
[7] Juror number 11 was asked why he had not raised this issue before he was selected as a juror. He had no real response to provide. Whether or not he had thought the question through before he was selected as a juror, is unknown to me, but I have no reason to disbelieve what he has now explained. Nevertheless, having raised the issue, the question becomes whether he can be discharged at this time and replaced with another juror.
[8] Counsel for the defendant advised he had never seen this situation before and requested that the jury be excused, and that we adjourn for lunch to permit him to research the question. I excused the jury, but before adjourning, drew the attention of both counsel to section 644 of the Code. In particular, section 644(1.1), stipulates as follows:
A judge may select another juror to take the place of a juror who by reason of illness or other reasonable cause cannot continue to act, if the jury has not yet begun to hear evidence, either by drawing a name from a panel of persons who were summoned to act as jurors and who are available at the court at the time of replacing the juror or by using the procedure referred to in section 642.(My emphasis)
[9] The important point to note, is that if potential juror number 11 had advised us of his problem before being sworn, he would have been excused on grounds of personal hardship. He would never have been sworn as a juror and would never have served as a trier.
[10] After hearing submissions from counsel, I am satisfied that the procedure contemplated in section 644(1.1) permits me to replace juror number 11 at this time, given that the trial has not yet commenced and no evidence has been proffered, by choosing another juror from the jury panel that was specially selected for jury selection in this case. The question is whether the issue raised by juror number 11 constitutes “other reasonable cause”. In my view it does. Further, the discharge of this juror before trial and his replacement by another juror poses no trial fairness issues nor does it prejudice the accused in any way. The jury selection will continue with the prospective jurors whose numbers were randomly picked until we have 12 jurors and 2 alternates under s. 642 to protect the size of the jury until the trial starts, probably Wednesday now.
[11] Indeed a similar occurrence happened on the last jury trial I conducted, R. v. Qureshi, during March. A juror was found to be acceptable in the challenge for cause selection process, and was sworn as a juror, but then as he went to take his seat in the jury box he turned around and advised me of medical procedures that he would need to be undergoing which would effectively remove him from availability for the very three weeks that the trial was scheduled to run.
[12] For some reason it had not crossed his mind to raise this beforehand, and when asked about that, he candidly said he did not think he would be selected as a juror. He was discharged without objection from counsel and a substitute juror was picked from the panel. In a quick random check with several other colleagues over the lunch hour, all have had the experience at least once, and had resolved it making use of the discretion granted by section 644(1.1).
[13] In my view that is exactly what should happen here. I have no reason to disbelieve the problem that juror number 11 has raised. Further, it seems to me that it would cause hardship not only for him, but for others who rely on him if he was to be removed from his responsibilities as an electrician foreman for the six weeks this trial is expected to run. In my view that qualifies as “other reasonable cause” within the meaning of the provision.
[14] As such, I exercise my discretion to discharge juror number 11 under section 644(1.1), and he will be replaced by the next juror to be selected through the continuance of the challenge for cause jury selection process in which we are now engaged.
Michael G. Quigley J.
Released: May 30, 2018
COURT FILE NO.: 17-5-354CR
DATE: 20180530
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
TRE ROBERTS-STEVENS
Defendant/Applicant
RULING ON JUROR 11 DISCHARGE
Michael G. Quigley J.
Released: May 30, 2018