COURT FILE NO.: CRIM J (P) 17-467-00 DATE: 20181024
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN A. SIMITSIS, for the Crown
- and -
MICHAEL ARO D. BYGRAVE, for Michael Aro
HEARD: June 14, 2018
Reasons for Trial Ruling: Declaration of Mistrial
L. McSWEENEY J.
Overview
[1] On June 14, 2018 I declared a mistrial during jury selection, with reasons to follow. These are my reasons.
[2] Michael Aro was charged with sexual assault and sexual interference with a young woman who was 13-15 years old at the time of the alleged offences. He elected trial by jury.
[3] During pre-selection instructions to the jury panel, I vetted the jury. Vetting included an instruction to advise the court of any personal matter “or personal circumstances which you believe would not let you be impartial or might appear to others that you might not be impartial.” The jury panel was also told that if it was too difficult to come up in front of the entire panel to speak of a personal matter, they could do so by speaking directly to me when called into court.
[4] Mr. Aro is Black. Counsel agreed that prospective jurors would be asked a standard Parks challenge question. Counsel also agreed that there would be rotating triers.
[5] Jury selection commenced. Two jurors were chosen who replaced the two initial triers.
[6] Potential Juror 34846 [the “Potential Juror”], was then called into court. She had not spoken up during the panel vetting, nor did she ask to speak or write to me about a personal matter upon entering the court. She took an oath on the Bible and was then asked the challenge question.
[7] The relevant exchange was as follows.
MS. BELGRAVE [sic]: As Her Honour will tell you, in deciding whether or not the prosecution has proven the charges against an accused, a juror must judge the evidence of the witnesses without bias, prejudice or partiality. Would your ability to judge the evidence in this trial fairly be affected by the fact that the person charged is black?
JUROR 34846: No, it doesn’t bother me that he’s black, it bothers me about what was actually he’s been accused of because I’ve had a similar situation before.
MS. BELGRAVE [sic]: I think that’s – thank you.
TRIERS: Acceptable
MS. BELGRAVE [sic]: Your Honour, might we confer with Your Honour.
MS. SIMITSIS: I think we’re in the midst of the jury challenge. We need to carry on given we’ve received a response and our triers have made a decision. Now it’s up to carry on between the parties.
THE COURT: Yeah, I’ve got – I’m fixed with the position of the triers here.
MS. BELGRAVE [sic]: Your Honour, I would ask then that we’d be allowed to ask more questions. I thought that we’d heard enough but …
THE COURT: Okay.
MS. BELGRAVE [sic]: … this witness should then be able to - this potential juror should be able to explain more. I thought that it was …
THE COURT: Fair enough.
MS. BELGRAVE [sic]: … and that’s why I would either asked to be excused that we could talk privately with Your Honour.
MS. SIMITSIS: Your Honour, my concern of course is we’re in the process now of the jury selection and it’s not an inquiry. That there are obviously rules and restrictions as to how many questions to be put to prospective jurors. They’ve answered under oath, they’ve given their responses, our trusted triers have made a decision. In my view, we need to carry on as part of the process, that we don’t interrupt it to start launching into inquiries of people.
CLERK REGISTRAR [sic]: Madam Registrar, I’ve heard submissions, we’re going to continue please, proceed.
CLERK REGISTRAR: The accused will rise. Accused, look at the juror, juror look at the accused. Crown?
MS. SIMITSIS: Content.
CLERK REGISTRAR: Defence?
MS. BELGRAVE [sic]: Might we just – I thought that at one point Your Honour was going to allow further inquiry, at the very least. And if not, I renew for a request to at least just have a moment to speak with Your Honour.
THE COURT: Okay. Can we excuse the jury for a moment, please, and the potential juror?
MS. BELGRAVE [sic]: Thank you.
THE COURT: Actually, please do not excuse the potential juror. Please excuse the jury only.
[8] I note that at the time Crown counsel indicated she was “Content”, the Prospective Juror had stated that she was bothered by what the defendant was accused of because she had “had a similar situation before”.
[9] After the jury left the courtroom, I then asked the Prospective Juror what she meant in her comment, whether it was something to do with her own experience. She replied to me, “I have been sexually assaulted before when I was younger”. I asked her whether she felt that, in the circumstances, it would be difficult for her to be impartial and keep an open mind. She replied, “I think so. I’ve been trying to deal with it all of last night after hearing about it, but I don’t think that I can give a fair statement.”
[10] Following the above reply, I asked the Prospective Juror to leave the courtroom in order to speak to counsel.
Positions of Parties
[11] Following the above exchange I expressed the following to counsel:
a. I must ensure a fair trial b. This is an unusual situation. Despite the opportunity offered during vetting of the panel and again upon entering the court during the selection process, the Prospective Juror had not advised the court of her concern that as a victim of sexual abuse, she would not be able to be impartial. c. If the Prospective Juror had so advised me during either of those earlier stages, she would have been excused. d. However in this situation the triers heard her initial answer and found her to be acceptable. It is not clear that the court has jurisdiction, in the part of the process between the triers’ assessment of the reply to the Parks question and the swearing-in of the juror, to excuse that Prospective Juror. e. The court is concerned that with the Crown’s position of “content” with the Prospective Juror, the Defence is now put in the position of either using one of its challenges in circumstances where it would not have had to do so if the Prospective Juror had identified her concern earlier in the process.
[12] Having outlined the above concerns, the Court received the following submissions from the parties.
[13] The Crown submitted that any probing of juror responses to the challenge question on matters unrelated to clarifying their answer to the specific racial bias issue, is not appropriate. Not only does it go beyond the Parks inquiry, but it violates the privacy of an individual. If an individual has not seen fit to advise the court at an earlier stage of their concern that they cannot be impartial, that is where the challenges can be used by either party. Where the Crown is content with a prospective juror and the defence is not, the defence can use a challenge. Going forward perhaps the prospective jurors can be reminded to advise court staff if they wish to speak to the judge before being sworn.
[14] Defence counsel submitted:
a. That I had discretion to excuse any juror before the commencement of trial pursuant to s. 632 (c) of the Criminal Code. b. She expressed the concern that if this Prospective Juror were to join the jury, she could “infect” other jurors already seated. In this case the first two jurors have already heard reference to the Prospective Juror’s personal history in her answer. c. The Court may have had jurisdiction to take the part of the Prospective Juror’s answer that was not about the Parks question away from the triers. d. She argued that the opportunity provided in the vetting process for prospective jurors to advise of personal circumstances was not sufficient during opening instructions to the jury panel. In the case of sexual assault history, it would be preferable that if the jury selection process continues, the court should address the remaining prospective jurors, and give an additional open invitation to them to advise of any additional response they may have to the issues canvassed in the vetting on the previous day.
[15] After receipt of submissions, I recalled the jury and advised the Prospective Juror that I was deferring her, and that she would not be required for the case.
[16] Before continuing with jury selection, and over the lunch break, I reviewed and considered the requirements of the Criminal Code and the relevant jurisprudence. In view of the Ontario Court of Appeal’s rigorous oversight of jury selection process matters, I considered it prudent to invite further submissions before moving on.
[17] Notwithstanding the defence position that I had jurisdiction to do so, and Crown's non-objection to my deferral of the Proposed Juror, I was concerned that I had fallen into reversible error by interfering in the selection process at a point where the triers indicated “Acceptable” and the Crown was “Content” with that juror, rather than letting the Defence exercise his right to challenge. I therefore offered the parties an opportunity to make submissions as to whether, in the circumstances, a mistrial should be declared.
[18] Counsel were given brief time to consider their position on this issue, and their submissions were correspondingly short.
[19] The Crown initially asked that, in the interest of justice and in the interest of the complainant, that the trial “forge on”. The Crown did not ask for a mistrial.
[20] After conferring with her client, defence counsel asked for a mistrial. She echoed the court’s concerns, referenced above, that the Criminal Code requirements may not have been met in the sequence of actions which followed the Prospective Juror’s answer to the Parks question. She also expressed concern that the Prospective Juror’s comment was heard by the seated jurors. A fair trial requires open minded and fair, unbiased jurors. Despite the deferral of the Prospective Juror, the seated jurors’ observation of the process to the point they were sent out of the courtroom may have affected their own ability to be impartial. Due to the risk of an adverse impact on the jury, she submitted that a mistrial was the appropriate remedy.
[21] The Crown submitted in her response that research and consideration would be needed to fully respond to the court’s concern that a reviewable error may have been made. Her response to the Defence submission was that any error made in handling the Prospective Juror was to the benefit of the defence, who did not therefore have to use one of his challenges.
Decision
[22] I acknowledge the reality, referred to by both parties in their submissions, that any mistrial creates delay and difficulty for the accused, the complainant, other witnesses, and for the court system. However, a successful appeal and a new trial ordered on the basis of an error in the jury selection process, is even more difficult for all those concerned.
[23] Due to the lack of clarity as to the court’s jurisdiction to excuse the Prospective Juror in the unusual circumstances which occurred in this case, and for the reasons listed above to which counsel had an opportunity to respond, I declared a mistrial in this case.
L. McSweeney J.