Court File and Parties
Court File No.: 235/18 Date: 2018-11-22 Ontario Superior Court of Justice
Between: Her Majesty the Queen Prosecution – and – Michael John William Ball Accused
Counsel: R. Dietrich and T. Shuster, for the Prosecution A. Bryant and A.M. Morphew, for the Accused
Heard: November 14, 2018
Decision Regarding Opening Comments to the Jury
Pursuant to section 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict, or until further order of the court.
The Honourable Justice J. R. Henderson
[1] The trial of this charge is scheduled to commence with jury selection on January 14, 2019. At the request of all counsel, I distributed a copy of the opening comments that I planned to make to the jury and the jury panel. My proposed opening comments were marked as the following exhibits:
- Exhibit 49A ( Opening Comments to the Jury Panel)
- Exhibit 49B (Comments to the Jury after it is Empanelled)
- Exhibit 49C (Comments to the Jury before the Trial Begins)
[2] I have now heard submissions and suggestions from counsel as to possible amendments that should be made to my proposed comments. I found that many of the suggestions were appropriate, and I will adopt them in my revised opening comments.
[3] In particular, I accept the suggestion that I should refer to the accused person, Michael Ball, as the “defendant”, rather than the “accused”. Further, I will strongly emphasize the point that the jurors should not investigate or research this case, or the previous trial, through an Internet search or otherwise.
[4] Regarding the elements of the offence, I do not agree with defence counsel’s request that I eliminate any reference to the elements of the offence in my opening comments. In my view, the jurors who are selected to try this case should be told generally about the elements of the offence in the judge’s opening comments prior to the start of the evidence portion of the trial.
[5] As to procedural matters, I accept the request by defence counsel to permit defence counsel to wait until after the Crown has made the Crown’s opening statement before deciding whether the defence wishes to make an opening statement at that point of the trial.
[6] I acknowledge that there is particular concern about publicity in the present case as this charge was previously tried in a well-publicized trial that was held in a different venue. There has been no order for a challenge for cause. Therefore, after my opening comments to the jury panel as a whole, I accept that, as part of the selection process, it is appropriate for each potential juror to appear individually before the court in the absence of other potential jurors.
[7] Further, defence counsel suggests that during the selection process potential jurors who have some knowledge of this case should be asked to inform the judge of that knowledge by writing a note to the judge, rather than orally informing the judge. I agree that at least initially this would be a prudent approach given that other jurors who have already been selected to try the case will be present in the courtroom at the time. However, depending upon the contents of the juror’s note, I leave open the possibility of an oral discussion between judge and juror.
[8] The only other alternative would seem to be the removal of each selected juror from the courtroom after selection so that selected jurors would not observe the selection process for subsequent jurors. I find that it is preferable for the jurors selected to try the case to remain in the courtroom during the continuing selection process. Therefore, the use of the note, although cumbersome, appears to be the best approach.
[9] With these points in mind, I have amended my proposed opening comments and attach same to this decision as Schedule A, Schedule B, and Schedule C.
J. R. Henderson J.
Released: November 22, 2018
SCHEDULE A
R. V. MICHAEL BALL
Opening comments to the jury panel
OPENING REMARKS
Ladies and gentlemen. It is customary for the presiding judge to make a few initial remarks to the jury panel. All of us who are involved in the administration of justice are well aware of the inconvenience that jury duty may cause you.
However, please remember that we are very fortunate to be living in a free country, unlike some people in other parts of the world. In our country we have a free and democratic government, and we are required by law to conduct our trials in a fair and reasonable manner. Many of our ancestors, and some of our contemporaries, have made supreme sacrifices to enable our country to remain this way.
As your contribution to our society we ask that you act as jurors from time to time in both criminal and civil cases. Both our society and the justice system benefit by your contribution. In return, I hope you will find it an interesting and rewarding experience.
The case before you today is a criminal case. You have heard that MICHAEL BALL is charged with first degree murder. You have just heard the charge read out loud. And, you have heard Mr. Ball plead not guilty to the charge.
INTRODUCTION (14 Jurors for the entire trial)
In a few moments, we will begin selecting the FOURTEEN jurors who will hear this case. If selected, your job will be to consider the evidence and decide if Mr. BALL is guilty or not guilty. The lawyers estimate that this trial will take approximately three months to complete. So, if you are selected as a juror, you should be available until approximately the end of April. (s. 631(2.2) CCC)
Before we start the jury selection, I would like to explain to you how this process works. At the first stage of this process, we are going to divide you into groups of about twenty people. The registrar will do this by selecting your numbers by lot, and will announce your number, place of residence, and occupation.
If your number is called, please step forward to the front of the courtroom. The Court Services Officer (CSO) will tell you where to stand. After approximately twenty of you have been called, your group will be given a letter or number and you will be asked to attend at another courtroom in this building at a specific time for the second stage. The CSO will show you where to report for the second stage of the process.
At the second stage, you will be brought into the courtroom individually one at a time, and the registrar will repeat your number, place of residence, and occupation.
peremptory CHALLENGES
At that point, counsel for the Crown and counsel for the defendant will have the opportunity to exercise their right of challenge. This is called a peremptory challenge. The word “peremptory” means the right to make an objection without showing any cause.
If counsel exercises their right to challenge you, then you will be excused from sitting on this jury. Counsel may use this right in any way they like. In this instance, both the Crown and the defendant have the right to make [ 22] peremptory challenges. (s. 634 CCC)
CHALLENGE NOT COMMENT ON INTEGRITY
- If either counsel exercises the right of challenge when you are called, please do not take this as a comment on your character or integrity. Counsel in this trial know the nature of this case. Therefore, they are in the best position to select jurors who are suitable to hear the evidence and return a verdict in this case. For whatever reason, they may choose to exclude you as a potential juror.
CONTINUATION OF SELECTION PROCESS
- We will continue this process until we have selected the FOURTEEN jurors who will try this case.
JUROR HAVING PERSONAL Interest in the Matter to be Tried
You should be aware of what to do if you have any personal knowledge or interest in this case. This is something that you should bring to my attention when your number is called at the second stage of the process.
It is very important that every juror be impartial. An impartial juror is one who will approach the case with an open mind, and decide the case based only on the evidence and the instructions from the trial judge. You may not be able to do that if you have some personal knowledge or interest in this case.
(RE: MEDIA) – Let me be specific about the media. You may have read something about this case in the newspaper, or you may have heard or seen something about it in the media or on an Internet site or elsewhere. If that is the case, that does not mean that you are ineligible to be a juror in this case.
You will only be ineligible to be a juror if what you have read or seen or heard makes you unable to approach this case with an open mind, and unable to decide this case based on the evidence given in court, and on my instructions to you.
So, if you know something about this case or if you have some personal interest in this case, please let me know the nature of your knowledge or interest when the registrar calls your number at the second stage. If you have a concern or you think that you have some knowledge of the case, you will be asked to write down your concern on a notepad and it will be handed to me. I may then have a few questions for you about your concern.
Also, please tell me about this before counsel are asked to exercise their peremptory challenges. To assist you I can tell you that the Indictment sets out the following essential details:
(1) Name of defendant: Michael Ball (2) Name of (deceased): Erin Howlett (3) The Charge: The Crown is prosecuting Mr. Ball for the first degree murder of Ms. Howlett that allegedly occurred on or about June 27, 2013 in the city of Kitchener.
Juror Having a Relationship with the Judge, Prosecutor, Defendant, Counsel for the Defendant, or a Prospective Witness
Also, if you know the defendant, or his counsel, or any prospective witness, or if you have had any previous association or personal relationship with the Crown Attorney, or with me as the judge, you may not be able to be impartial. If that is the case, you should let me know the nature of your previous association with that person when the registrar calls your number at the second stage. I.e.: before the peremptory challenges are requested. (s. 632 CCC)
I can tell you that the names of counsel are:
a) Crown counsel: Mr. Dietrich, Mr. Shuster b) Defence counsel: Mr. Bryant, Ms. Morphew
- So that you will know the names of the persons involved in this case, I will now call upon [Crown counsel] to read them to you. These are the names of police officers, experts, and civilians whose connection with this investigation was sufficiently significant that they will be called as witnesses or are likely to be referenced during the trial.
CITIZENSHIP REQUIREMENT
- Also, our law requires that each juror be a Canadian citizen. If you have not yet become a Canadian citizen, please let me know when your number is called at the second stage.
UNDERSTANDING OF LANGUAGE OF TRIAL, ABILITY TO HEAR, OR OTHER HEALTH ISSUES
Similarly, our law also requires that each juror be able to understand the language that will be used in the trial. In this case, witnesses will testify and others involved in the case will speak in English. If you have any real difficulty understanding the English language, again please let me know when your number is called at the second stage.
Also, if any of you have difficulty hearing, please let me know so that I can determine whether your hearing loss may make it difficult to serve as a juror even with the assistance of a listening device.
Further, if you have any difficulty sitting for extended periods of time - say up to one and a half hours – or have difficulty walking, please let me know so I can assess whether that difficulty might make it impossible for you to serve as a juror.
THE NATURE OF THE OFFENCE
Next, you have heard the charge read and you have heard the defendant enter a plea of not guilty to the charge. If you are selected as a juror you will be told that you must make your decision without sympathy without bias and without prejudice.
If you believe that you will not be able to set aside any bias or prejudice and decide this case impartially based only on the evidence that you will hear at this trial, you should let me know when your number is called at the second stage. Mr. BALL is presumed to be innocent of the charge, and if you harbour any bias or prejudice or are not prepared to accept that Mr. BALL is presumed innocent at law, that may disqualify you to sit as a juror.
DO NOT DO YOUR OWN SEARCH
- Furthermore, during the jury selection process, please do not search for information about this case on your own. Do not try to look up information about the case in the media or on the Internet. Please do not Google the case or the names of anyone who is associated with the case.
JUROR MAY EXPERIENCE PERSONAL HARDSHIP
Finally, if your service on the jury will cause you personal, financial, or other hardship, or if you have any other reason that you believe should excuse you from serving on this jury, please let me know when the registrar calls your number at the second stage.
Note that in order to be excused there must be a real hardship, not merely an inconvenience. For example, you may be self-employed, and your business will shut down if you are taken away from it. Or, you may have a medical condition that prevents you from sitting on a jury.
Again, let me know if you believe that you will have a personal, financial, or other hardship when you are called individually, and before counsel are requested to exercise the peremptory challenges.
FINAL REMARKS
As you can see there are a number of matters for you to consider. We are not here to embarrass anyone, and that is why we will be asking each of you to come into the courtroom individually, separate from other members of the jury panel. You will recall that each of you was asked to complete a questionnaire, and that questionnaire will be shared with the lawyers when your number is called.
I want to remind you that if you do have any knowledge of the participants or this case, I am going to ask that you write down your concern as opposed to saying it out loud.
ADJOURNMENT AFTER SELECTION COMPLETE
Once we finish selecting the FOURTEEN jurors, there will be a short break. For those of you who are selected as jurors, this will be an opportunity for you to contact your families and employers to tell them that you were selected as a juror.
For those of you not selected to sit as jurors on this trial, you will be excused from jury duty until your name comes up again.
(Mr./Madam) registrar, please begin selecting the jurors.
SCHEDULE B
R. V. MICHAEL BALL
COMMENTS TO THE JURY after it is empanelled
daily schedule; sequestration
Ladies and Gentlemen. Before we take a short adjournment, there are a few things that I would like to tell you. Regarding the hours that we will work each day, I can tell you that the court usually sits each day from approximately 10:00 a.m. to 1:00 p.m., then we take a break for lunch, and then the court usually sits in the afternoon from about 2:15 p.m. to about 4:30 p.m. We try to have a mid-morning and mid-afternoon recess at convenient times.
In addition, I can tell you that on this trial we will not be sitting on every second Friday starting Friday, January 25, 2019. So, you will have one day off every two weeks.
During the trial, you may leave for lunch at the lunch break and go home at the end of each day. You will not be sequestered, or kept together at the courthouse, during the evidence portion of the trial.
However, once all the evidence is heard and I finish giving you my final instructions, you will be sent to the jury room to reach a verdict. At that stage, you will be sequestered. This means that you will be kept together as a jury, and you will be kept apart from your friends and family until you reach a verdict. I will give you more instruction about that later in the trial.
ALTERNATE JUROR(S)
You can see that we have selected 14 jurors for this trial. The fact that we have 14 jurors provides us with a cushion as we only require 12 jurors to deliberate at the end of the trial.
All fourteen of you will attend court, hear the evidence, and be kept together as a jury throughout the trial. However, at the end of the trial, before you are sequestered, we are required to reduce the number of jurors who deliberate to twelve.
So, after I complete my final instructions to you, if we still have more than twelve jurors, we will draw numbers by lot to reduce the number of jurors to twelve. Then, those twelve remaining jurors will deliberate and decide the case. Any juror who is removed as a juror at the time will be excused.
REMOVING THE JURY
When you are excused today, in a minute, the CSO will escort you to the jury room, show you the jury room, and show you where to report when you return to court. Thereafter, you may leave the court house, and you will be required to return to this court on.............. at………... to commence the trial.
You may be very confused right now as to your role as a juror. Don’t worry! When you return to the courtroom I will give you further instructions as to what to expect as the case progresses, and what your role will be in this case.
I WANT TO LEAVE YOU SOME PRELIMINARY INSTRUCTIONS before I let you go today.
First, despite your best efforts, you might still read or hear about this case in the newspapers or online or in other media. For now I just want to tell you to ignore anything that you might see or hear about this case outside of the courtroom. Your verdict is going to be based solely on what you see and hear in the courtroom. If you do stumble upon something in the media about this case, just ignore it.
Also, you are not to talk to anyone about this case, other than your fellow jury members. So, please do not discuss this case with your friends or family. You can tell them that you were selected as a juror, but that is all. Tell them the judge said you cannot talk to them about the case.
Also, please do not search for information about this case on your own. Do not try to look up information about the case in the media or on the Internet. Do not Google the case or the names of anyone who is associated with the case.
You may now remove the jury to the jury room.
instructions to panel members not selected
- To those members of the jury panel who were not picked to sit on this jury, you have completed your required jury duty for this session and you are excused from further jury duty until your name comes up again.
ADJOURNMENT
- We will now adjourn until ……...
SCHEDULE C
R. V. MICHAEL BALL
COMMENTS TO THE JURY BEFORE the TRIAL BEGINS
introduction
- Members of the jury, before you hear the evidence in this case, I am going to spend some time explaining some basic principles that will be important for your consideration of this case. I will also explain to you what I expect will happen during the trial.
FUNCTIONS OF JUDGE AND JURY
I begin with some general comments about the judge and jury system. This system is one of the oldest and most important of our legal traditions. It is a team system, where you are the judges of the facts and I am the judge of the law. Although I will be making some comments about the evidence at the end of the trial to help you understand how to apply the law while you are making your decision, your view of the evidence (that is, the facts) must prevail. You are the exclusive judges of the facts.
By the same token, when I tell you what the law is, my view of the law must prevail. I am the exclusive judge of the law. It would be wrong for you to decide this case on the basis of what you think the law is or what you think it should be if that conflicts with what I tell you about the law.
PRESUMPTION OF INNOCENCE AND PROOF BEYOND a REASONABLE DOUBT
- There are two basic principles that are fundamental to any criminal trial. They are the requirement for proof beyond a reasonable doubt and the presumption of innocence.
REASONABLE DOUBT
The requirement for proof beyond a reasonable doubt means just what it says. No person who is charged with an offence can be found guilty unless the Crown proves each and every part or element of that offence beyond a reasonable doubt.
A reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence.
It is not enough for you to believe that the defendant is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt.
You should also remember, however, that it is nearly impossible to prove anything with absolute certainty. Crown counsel is not required to do so. Absolute certainty is a standard of proof that is impossibly high.
So, if, at the end of the case, based on all of the evidence, you are sure that the defendant committed (an) offence, you should find him guilty of it, since you would have been satisfied of his guilt of that offence beyond a reasonable doubt.
However, if, at the end of the case, based on all of the evidence, you are not sure that the defendant committed an offence, then you should find him not guilty of that offence.
PRESUMPTION OF INNOCENCE
Similarly, our system of law requires that a defendant be presumed innocent. MR. BALL has no obligation to prove that he is not guilty, or even to explain the evidence offered to you by the Crown. The law presumes him to be innocent (or not guilty), until you unanimously decide otherwise.
The presumption of innocence means that MR. BALL starts the trial with a clean slate. The presumption stays with him throughout the case, including your deliberations at the end of the trial. It is only defeated if and when Crown counsel satisfies you beyond a reasonable doubt that he is guilty of the crime charged.
The presumption of innocence also means that (MR. BALL) does not have to testify, present evidence, or prove anything in this case. It is Crown counsel who must prove the guilt of MR. BALL beyond a reasonable doubt, not MR. BALL who must prove his innocence.
What does this mean to you as jurors?
First, it means that you should avoid forming opinions too soon. We have all been in situations where we formed opinions after hearing part of a story, only to change our minds when the full story was told. The law requires you to decide whether Mr. BALL is guilty or not guilty based on a consideration of all the evidence.
It is natural for you to have some discussions with your fellow jurors about this case as the trial progresses. But, I recommend that you be cautious when discussing the case among yourselves until you retire to the jury room at the end of the trial. If you state a strong opinion to other jurors during the trial, you may find it difficult to change your mind when you are deliberating at the end of the trial.
Second, you must pay close attention to the evidence, because you cannot return a verdict of guilty unless you are satisfied that each element of the offence charged is proved beyond a reasonable doubt. If you are left with a reasonable doubt after you consider all the evidence, you must give the benefit of that doubt to Mr. BALL and return a verdict of not guilty.
I will explain the presumption of innocence and proof beyond a reasonable doubt again, when I instruct you near the end of the trial. However, I wanted to tell you about these principles now so you can keep them in mind as you hear the evidence.
OVERVIEW OF the TRIAL
- I will now tell you what you can expect as the trial unfolds.
opening statement - Crown
- When I finish these remarks, I will call upon ………………., the lawyer representing the Crown, to make (his) opening statement to you. (He) will tell you what (he) expects the evidence to show, and what (he) expects the various Crown witnesses will say. The purpose of this opening statement is to make it easier for you to follow the evidence as the witnesses testify. It is important that you understand that the opening statement of Crown counsel is not evidence.
POSSIBLE OPENING STATEMENT - DEFENCE
- After the Crown’s opening statement, defence counsel may choose to make an opening statement for the same purpose, or defence counsel can defer the defence opening statement to the start of the defence case. Again, an opening statement by defence counsel is not evidence.
CROWN CASE
Next, the Crown will present its case. Crown counsel will call the first Crown witness and will begin direct examination of that witness. Direct examination is a series of questions that gives the witness an opportunity to tell you what he or she knows about this case.
On direct examination, counsel is not supposed to ask a question which suggests an answer. That is called a leading question. It is objectionable because it amounts to counsel giving the evidence while the witness merely agrees or disagrees.
On the other hand, sometimes leading questions are permitted regarding facts that are not in dispute or because an agreement is reached between Crown and defence counsel to lead a witness on relatively unimportant matters. If that happens, the answers carry the same weight as if the questions were not leading.
After [Crown counsel] asks all (his) questions of the first witness, [defence counsel], then has the opportunity to conduct cross-examination of the witness. The purpose of cross-examination is to test the evidence given by the witness and to bring out other facts that may put a different light on the witness’s testimony or otherwise assist the defendant. Leading questions are allowed on cross-examination. Also, there is no obligation on [defence counsel] to conduct any cross-examination.
After the completion of any cross-examination by [defence counsel], the witness may be re-examined by [Crown counsel]. Re-examination is very restricted, and I will control its use. Often there is no re-examination at all, or it is quite short.
This procedure will continue for each witness, until you have heard all of the Crown witnesses.
DEFENCE CASE
Once the Crown finishes presenting its evidence, [defence counsel] may present evidence on behalf of (his/her) client, MR. BALL, the defendant.
You will recall that I told you about the presumption of innocence. It means that MR. BALL has no obligation to present evidence to prove that (he) is not guilty. It is up to the Crown to prove guilt beyond a reasonable doubt. So, MR. BALL may choose to call no evidence at all.
If [a defendant] intends to present evidence, [defence counsel] will usually begin with an opening statement, but only if one was not made at the outset. Again, remember that what counsel says to you is not evidence.
The defence witnesses will then be called, and we will follow the same procedure as we did for Crown witnesses, only this time [defence counsel] will conduct direct examination, and [Crown counsel] will have the opportunity to conduct cross-examination.
CROWN REPLY
Where a defendant decides to present evidence, the Crown may have the right to call evidence in reply. If this happens, it will be similar to the first part of the Crown case.
This will complete the evidence portion of the trial.
TESTIMONY OF WITNESSES
While you are listening to the evidence, I urge you to pay close attention to what each witness says and how (he/she) behaves while giving evidence. You must eventually decide which witnesses to believe. You need not accept or reject all of a witness’s testimony. You may choose to believe part of a witness’s testimony, and reject the rest. It is up to you.
I can offer some guidelines (or tips) that may help you to decide which evidence to believe and which to reject:
- Consider the witness’s attitude and behaviour in the witness box, but remember that some people may be nervous about testifying in court.
- Consider the ability and opportunity of the witness to observe the things referred to in his or her testimony.
- Assess the ability of the witness to express himself or herself, to understand the questions, and to give intelligent answers.
- Ask yourself whether the witness has any reason to be biased regarding the outcome of this case.
- Please understand that these are only guidelines. The best guideline I can give you is that you should simply use your common sense when deciding which evidence to believe and which to reject.
TYPES OF EVIDENCE
- You should be aware that the evidence may include more than just the testimony, that is, oral evidence, of witnesses. Documents and objects are often part of the evidence in a trial. If any documents or objects become part of the evidence in this trial, you will have them with you in the jury room when you retire to consider your verdict.
EXCLUSION OF the JURY DURING the TRIAL
From time to time during the trial, it may be necessary for you to leave the courtroom and retire to the jury room so that the lawyers may argue points of law or points of evidence in your absence. For example, they may wish me to make a ruling as to whether a certain line of questioning should be heard by you. This is a very common occurrence in every criminal trial. I can assure you that we will do our best to keep the interruptions to a minimum, but interruptions will occur.
If this happens please do not speculate on the specific reasons you are being excluded. You should not make any assumptions as to why you were excluded from the courtroom. Your assumptions could be entirely wrong.
CAUTION - CONFIDENTIALITY OF DELIBERATIONS
There are a few other general matters I wish to discuss with you. The first concerns confidentiality. People (especially family members) will naturally be interested in the trial, and in your experiences as a juror. They may try to discuss the trial with you. Do not do so.
During the course of the trial, you are not allowed to discuss the trial with anyone who is not on the jury. This also means that you should not have any written or spoken communication outside this courtroom with the defendant, a witness, or counsel at this trial.
If someone tries to discuss the trial with you in what you believe is an improper manner before you reach your verdict, please report it to a CSO, who will report it to me. Then, I will deal with it.
Once the trial is over and you reach a verdict, you may discuss what occurred in the courtroom with anyone you choose. However, you must never talk about what happened in the jury room, because it is a crime to do so. In this way the law protects the confidentiality of your deliberations.
CAUTION - PUBLICITY
The next matter concerns things you might see or hear outside the courtroom. Under our system of law, a defendant can only be found guilty of an offence on the basis of evidence presented in open court. Things you see or hear in the media are not evidence, and you must ignore them. The same thing applies to any information that may be distributed over the Internet, or through vehicles such as Facebook or Twitter or Instagram, about this case.
There is a good reason for the rule. You see, neither the prosecution nor the defendant has an opportunity to reply to rumours or accusations from the media or elsewhere. Nor can they cross-examine the source of such rumours or accusations.
Therefore, you should pay no attention to any remarks, or articles, or accusations if you hear or read about them. Also, during the trial you should not be communicating with anyone other than your fellow jurors about this trial in any way. So, you cannot comment about the trial on Facebook or Twitter, or any similar social network.
CAUTION – PRIVATE RESEARCH BY A JUROR
Furthermore, since you must decide this case solely on the evidence you hear in this courtroom, you should not try to gather evidence on your own. It is the responsibility of counsel to present all the relevant and admissible evidence.
Therefore, please do not search for information about this case on your own. This means that you should not search for this case or do any research about this case yourself, on the Internet or otherwise.
Do not try to look up information about the case in the media or on the Internet. Do not do a Google search of the case or the names of anyone who is associated with the case.
If you discover that someone on this jury is, in fact, doing his/her own research about this case, please inform the CSO who will bring it to my attention and I will deal with it.
Now, I want to return to the trial procedure
CLOSING ADDRESSES OF COUNSEL
- After all of the evidence is presented, counsel will then make their closing addresses to you. They will review the evidence, and explain why they think you should find MR. BALL guilty or not guilty. I remind you that what counsel say is not evidence. Counsel are free to talk about the law that applies to this case. But, if what they say about the law is different from what I tell you, then you must accept my version.
FINAL INSTRUCTIONS
Once counsel finish their closing addresses, I will give you my final instructions. This is sometimes called the Judge’s Charge.
I will tell you about the law that applies in this case. I will also review some of the more important evidence you heard. I review that evidence only to help you remember and understand its significance.
JURY DELIBERATIONS
When I finish my instructions at the end of the trial, you will retire to the jury room in order to consider your verdict. Once you reach a verdict and report it to me in open court, that will be the end of your duties at this trial.
During the trial, at the end of each day, you may return to your homes. You do not have to stay together during the trial.
However, when all of the evidence has been presented, counsel have addressed you, and I have given you my final instructions, you will go to your jury room together to try to decide the case. At that point in time our law requires you to be sequestered. That means that you will stay together until you have reached your verdict.
REDUCE NUMBER OF JURORS
Regarding the number of jurors, as I explained earlier, the fact that we have 14 jurors provides us with a cushion as we only require 12 jurors to deliberate at the end of the trial.
All fourteen of you will attend court, hear the evidence, and be kept together as a jury throughout the trial. However, at the end of the trial, before you are sequestered, we are required to reduce the number of jurors who deliberate to twelve.
So, after I complete my final instructions to you, if we still have more than twelve jurors, we will draw numbers by lot to reduce the number of jurors to twelve. Then, those twelve remaining jurors will deliberate and decide the case. Any juror who is removed as a juror at the time will be excused.
NOTE-TAKING BY JURORS
During the trial you may or may not choose to take notes. The choice is yours. If you want to take notes during the trial, just let your CSO know, and pencils and paper will be provided for you.
Be aware, however, that you may find it difficult to take detailed, accurate notes and, at the same time, pay close attention to what witnesses are saying and how they are saying it. If you decide to take notes, make sure that taking them does not interfere with your ability to listen to witnesses, or your duty to consider all of the evidence.
Also, to protect the secrecy of your work, you must not take your notes with you at the end of our sittings for each day. We will make arrangements to keep them in a secure place and return them to you when we resume sitting the following day.
If you decide not to take notes, it is your own individual responsibility to listen carefully to the evidence. You must not give this responsibility to any fellow juror who may be taking notes. You should also not be overly influenced by the notes or the memory of a juror who took notes. We depend on the memory and judgment of all jurors to decide this case.
ELEMENTS OF THE OFFENCE
Before calling on Crown counsel, I will tell you something about the offence with which the Crown has charged the defendant.
In this case, the Crown has charged Michael BALL, with the first degree murder of Erin HOWLETT. At the end of the trial you will be asked to reach a verdict on this charge. That is, you will be asked to decide if MR. BALL is guilty or not guilty.
Before you can legally return a guilty verdict for any offence, the Crown must prove each of the elements of the offence beyond a reasonable doubt. At this point, I want to give you a list of the basic elements of this offence.
To prove first degree murder, the Crown must prove:
That Mr. BALL committed an unlawful act;
That Mr. BALL’s unlawful act caused Ms. HOWLETT’s death;
That Mr. BALL meant to cause Ms. HOWLETT’s death, or that Mr. BALL meant to cause Ms. HOWLETT bodily harm that he knew was likely to cause her death and was reckless whether death ensued or not; and
That Mr. BALL’s murder of Ms. HOWLETT was both planned and deliberate.
Rest assured that after all of the evidence has been presented, I will give you more complete instructions about each of these essential elements. I will also tell you about any defences or other issues that arise on the evidence and explain how they relate to the essential elements that Crown counsel must prove beyond reasonable doubt and the verdicts that you may give at the end of the case.
INCLUDED OFFENCES
- It may also be necessary for you to consider what we call included offences in addition to the offence charged in the Indictment. We will not know this for certain until we hear all of the evidence. I will give you more instruction later if this becomes an issue.
PREVIOUS TRIAL
There is another matter that I wish to bring to your attention before I conclude my remarks. In the course of this trial you may hear the lawyers or witnesses refer to a previous trial and a preliminary hearing, or a first trial, of this charge against MICHAEL BALL. In fact, there was an earlier trial of this charge.
You should not be concerned about what happened at the first trial or why there is now a second trial or why this trial is being held in St. Catharines. That is of no relevance to you.
However, it may be that some witnesses in this trial will be asked about what happened or what they said at the first trial. If that happens, I will give you instructions as to how you can make use of that evidence.
CONCLUDING REMARKS
Now, it is your duty to sit, watch, and listen to the evidence that is presented. You must listen to and observe these trial proceedings without prejudice, bias or sympathy. Keep an open mind.
I will now call upon the Crown Attorney to make his Opening Statement.
COURT FILE NO.: 235/18 DATE: 2018-11-22 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – Michael John William Ball decision regarding opening comments to the jury J.R. Henderson J. Released: November 22, 2018