COURT FILE NO.: CRIMJ(P) 1309/18
DATE: 2020 08 28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
B. McGuire and P. Maund for the Crown
– and –
DEVON BEALS
R. Gadhia, Counsel for the Accused D. Beals
SHAYNE BEALS
S. Taraniuk, Counsel for the Accused S. Beals
CLIVE WALTERS
A. Abbey, Counsel for the Accused C. Walters
ALEXANDER BUCKLAND
T. Kirichenko, Counsel for the Accused, A. Buckland
HEARD: August 24, 2020
RULING ON DISCHARGE OF JURORS
PURSUANT TO S. 644(1) OF THE CRIMINAL CODE
J.M. Woollcombe J.
A. Introduction and Background
[1] The accused are charged with the first degree murder of Heidrah Shraim, alleged to have occurred on November 22, 2017.
[2] Jury selection took place beginning on February 3, 2020. At that time, prospective jurors were told that it was estimated that the trial would take about eight weeks and that it was expected to end by March 27, 2020. The trial before the jury began February 10, 2020. Again, the 12 members of the jury were told that it was expected that the trial would be completed by March 27, 2020.
[3] The trial progressed more slowly than counsel had anticipated. By March 16, 2020, it was clear to counsel and me that several more weeks were needed for the Crown to complete its case. It was apparent that the case would not be done by March 27, 2020 and that it would likely take much of April.
[4] However, on March 16, 2020, the trial came to an abrupt halt. That day, due to the COVID-19 pandemic, the Superior Court of Justice in Ontario shut down all matters that were in the courts. As a result, the jury was advised that the trial could not continue, but told to return to court on June 1, 2020 for it to resume. The matter was adjourned until then.
[5] It turned out that June 1, 2020 was an overly optimistic return date. On May 7, 2020, the first of many virtual discussions took place with counsel and the accused on a telephone conference call. By that point, a decision had been taken that jury trials would not take place in the Superior Court of Justice in Ontario until at least September 2020. Accordingly, the trial could not resume on June 1, 2020. The accused were remanded to May 19, 2020.
[6] With counsel’s consent, a letter dated May 7, 2020 was sent to all jurors advising them not to attend at the courthouse on June 1, 2020. Each was asked whether, were the trial to resume in September, he or she would be able to continue as a juror. If jurors believed that returning would create an undue hardship, for health, financial, employment or family reasons, they were asked to explain those reasons. They were also told that counsel expected that the trial would take an additional seven weeks to complete.
[7] All jury members provided emailed responses. A further conference call was held with counsel and the accused on May 19, 2020. A decision was made that jurors would be advised that none of them would be discharged yet. The case was adjourned to July 14, 2020 for further discussions.
[8] On May 20, 2020, I wrote to the jurors and thanked them for their responses. That letter acknowledged that some of them had indicated that they might not be able to continue in September, but advised them that it was pre-mature to discharge any juror at that time. Given the uncertainty with the pandemic and whether the trial would be able to resume in September, I advised that I write to them again in late July to update them.
[9] Counsel then requested a conference call be held with me to discuss scheduling before the July 14, 2020 remand date. That conference call took place on June 17, 2020. As it turned out, by that time, in light of the significant efforts that were taken to make the courthouse and courtrooms safer from the risk of COVID-19, there was a potential for the trial to proceed as early as July 13, 2020, subject to juror availability. The matter was adjourned to June 23, 2020 so that the jurors could be canvassed respecting a July return date.
[10] With the consent of counsel, I wrote a third letter to the jury dated June 17, 2020. They were advised that we were considering whether the trial could be resumed on either July 13, 2020 or September 8, 2020, for 7-8 weeks. Again, they were asked whether either date would create undue hardship and, if so, to explain why.
[11] Again, all jurors responded by email. A further conference call was held with counsel and the accused on June 23, 2020. It was agreed that, on the basis of the responses received, the trial could not continue in July because there were a significant number of jurors for whom resuming would, for health or family reasons, be impossible. It was unclear whether there would be a sufficient number of jurors available in September as many were still uncertain of their work and family situations.
[12] The accused were remanded to July 14, 2020 so that there could be discussions with Durno J. respecting possible re-election to a judge-alone trial, or resolution. The matter was further adjourned on July 14, 2020 to August 5, 2020 so that those discussions could take place.
[13] On August 5, 2020, I was advised that there was no resolution and that there would not be a re-election to a judge-alone trial. Counsel and I again reviewed the responses that the jurors had provided in June about their September availability. It was agreed that more information was needed from the jurors respecting their willingness and ability to continue for the eight weeks needed to complete the trial. As a result, the following steps were taken:
i) With the consent of all parties, juror #9 was to be discharged. He had contracted the coronavirus and indicated that he had ongoing memory challenges. A letter dated August 10, 2020 was sent to this juror discharging him.
ii) The jurors who had advised in June that they were able to continue in September (#1, 2, 3, 5, 7 and 12) were sent an email message that it was hoped that the trial would continue in September, likely on September 14 or 21, 2020[^1] and that if , for any reason their situation had changed such that it would be an undue hardship for them to continue, they were to advise the jury office as soon as possible of the reason why.
iii) The jurors who had indicated that they could not resume, or were unsure about whether they could resume in September (#4, 6, 8, 10 and 11) were invited to a Zoom conference call on August 24, 2020 so that I could have an individual discussion with them and determine whether any of them ought to be discharged.
[14] Juror #12 responded that she could not continue in September, and so she was subsequently invited to the August 24, 2020 Zoom call.
B. The August 24, 2020 Zoom call and positions of counsel
[15] The purpose of the Zoom call on August 24, 2020 was to determine whether I was satisfied that any juror should be discharged pursuant to s. 644(1) of the Criminal Code.
[16] On August 24, 2020 each juror was brought by video link into the conference with counsel and the accused individually. I had a discussion with each juror about his or her individual situation. I advised that I was hopeful that the trial would continue in late September[^2] and needed to know if the individual was unable to continue, what the reasons were. I invited each juror to say as much as he or she wished and to be as candid as possible.
[17] After discussing all jurors’ situations with them, counsel agreed to provide me with written submissions on their positions respecting whether any jurors ought to be discharged. Their positions are as follows:
• The Crown’s position is that no jurors should be discharged;
• Counsel for Devin Beals submits that jurors # 4 and 11 should be discharged;
• Counsel for Shayne Beals takes the position that if juror #4’s situation remains unchanged prior to the commencement of the trial, she should be discharged. None of the other jurors should be discharged;
• Counsel for Mr. Walters takes the position that jurors # 4, 8 and 11 should be discharged;
• Counsel for Mr. Buckland adopts the submissions of Mr. Abbey, for Mr. Walters, thereby taking the position that jurors # 4, 8 and 11 should be discharged.
C. Analysis
[18] Section 644 permits a judge to discharge any juror if satisfied that “by reason of illness or other reasonable cause” that juror should not continue.
[19] I have set out the chronology of this case in detail as it is important context in which to make a determination as to whether any jurors should be discharged. The jurors in this case were told in February that the trial was expected to last until the end of March. They could reasonably have expected their eight week commitment to have been over by the end of March 2020. Asking these jurors to return for eight more weeks of trial time, six months after their commitment to doing so should have been over, is a significant ask.
[20] But, unexpectedly, the world changed with the COVID-19 pandemic. The result is that the trial was halted and members of the jury, like everyone else in the province, were told to stay home in an effort to stop the spread of the virus. The past five months have presented everyone with enormous challenges. People continue to worry about their health, families, employment and finances as we all adjust to a changing new reality. The situation for the fall of 2020 continues to present many unknowns, including what will happen when schools re-open, and whether, and where, there may be a “second wave” of the virus. These and other uncertainties compound the stress levels people in this community feel. I can only assume that the uncertainty of whether, and when, this challenging murder trial will continue has caused additional stress for the jurors. Any consideration of whether to discharge any juror must factor in the impact of these many sources of stress and anxiety on the jurors.
[21] At the same time, I am mindful of the fact that there has been five weeks of evidence adduced in this case, with 19 witnesses having already testified. A decision to discharge two or more jurors will mean a mistrial because s. 644(2) of the Criminal Code provides that a jury trial may not continue with fewer than ten jurors. A mistrial would have a significant effect on the accused, two of whom remain in custody. It is far from clear when another jury could be empanelled, given the challenges of jury selection with the necessity of social distancing. These factors, of course, make me acutely aware of the profound impact that any decision to discharge a juror will have on those facing this very serious charge.
[22] It is against this complex backdrop that I have considered the question of whether to discharge any juror. I note at the outset that juror #6 advised that he was ready, willing and able to continue as a juror.
[23] After anxious consideration of what to do, I have concluded that jurors #4 and 11 should be discharged. I will explain my reasons.
Juror #4
[24] Juror #4 had indicated previously that she is the primary caregiver for her son, who is 6 years old and in grade one. She and her husband have a blended family in that she has two stepsons, ages 11 and 14, in grades 7 and 9, who live with her family half of the week. Her husband works full time in an essential service (pharmacy and medical benefit management). She said that the family is in a “bigger bubble” because it is blended, and that all of the children will be at different schools in the fall. She is anxious about how the return to school will be for those children. She is working from home, but her employer has implemented a “workshare” program through which employees work some days and are paid unemployment insurance on days they do not work. She currently works four days and has “workshare” one day a week. She has asked her employer what would happen if she were to return to jury duty, but has not been given an answer and believes that preparations are being made for layoffs.
[25] Juror #4 expressed concerns about the children returning to school in the fall. She worries about her ability to support them if she is back on the jury and does not have the flexibility to be home. She explained that the grandparents, who are in their 70s, are not comfortable having contact with the family once the children return to school. She also worries about the stability of her employment. Additionally, she expressed concern about her mental health were she to return to the trial as a juror. As she spoke to me, she became emotional and teary more than once.
[26] When asked how she would be if she had to return, juror #4 said she would do her best. She appeared to me very anxious about this. She acknowledged the accused’s right to have their trial, but indicated that she wished to put her family first.
[27] In my view, in all of the circumstances, it is understandable why juror #4 wishes to put her family first. While she appreciates the importance of the trial, she has raised what I view as legitimate reasons not to continue, including concerns for her sons’ adjustment to being back at school during the pandemic, worries about their health, worries about the need to provide support to these boys at home because of the unavailability of her husband and the grandparents, anxiety about her own work and fear about the mental health impact on her of continuing as a juror.
[28] All defence counsel recognized that juror #4 has presented a compelling case of hardship and should be discharged, although Shayne Beals suggests that discharge should wait until the trial commences.
[29] I do not agree with the Crown’s position that juror #4’s primary concern is about what may happen with her children at school this fall. I see her concerns as multi-faceted, valid and honest. The depth of her concern was apparent to me by the emotional way she communicated. I am satisfied that juror #4 should be discharged. I think it would cause her undue hardship to continue with this trial for eight further weeks in September.
Juror #11
[30] Juror #11 has two children, ages 5 and 9. She said that she and her husband have made the decision to home school the children via the internet in the fall. It is their plan for her to be at home with them. She had previously advised that having her husband stay home with the children would cause financial hardship to their family. While they plan to put the children back into school at some point, they want to see how things go. She indicated that there is to be a staggered school start in September and mentioned November as a possible time for the children to return to school. She also indicated that they would know more after the first several weeks.
[31] Counsel for Shayne Beals submits that the juror’s plan to home school is temporary and that she may well be available for a late September re-commencement of the trial. The Crown takes the same position.
[32] Counsel for Devin Beals submits that given the plan to home school her children, there is a lack of certainty as to whether juror #11 could return to jury duty without personal hardship. Counsel for Mr. Walters notes that the juror’s choice to home school her children is an understandable and legitimate choice and that it is incompatible with her continuing as a juror. This position is adopted by counsel for Mr. Buckland.
[33] In my view, given the global pandemic, and the situation in Peel, it is legitimate and understandable juror #11 and her husband to have made the decision not to send her children to school in September and to home school them. Doing so is incompatible with her continuing as a juror. While their family does not expect this to be a long term decision, and she mentioned sending the children to school in November, it seems to me unfair to her and her family to insist that she change their family’s plan by late September so that she can return to the trial. Juror #11 said that schools in Peel Region will have a staggered start. In my view, it will be impossible for this family to assess how things are going and make a considered decision in the best interests of their family knowing that the trial is resuming in late September and expecting juror #11 to be there. Having her remain as a juror effectively forces her to send the children to school, whether the family is ready to or not. I think this puts an unfair pressure on this juror and her family and causes the family undue hardship.
[34] In my view, consistent with the views of counsel for Devin Beals, Mr. Walters and Mr. Buckland, juror #11 should be discharged.
Jurors # 8, 10 and 12
[35] None of jurors # 8, 10 or 12 should be discharged.
[36] Juror #8 is a business owner with her husband. They sell sports memorabilia. She indicated that the Christmas rush begins in September and that the fall is their busiest time of the year. She says that returning to jury duty will not impact her financially or put the business in jeopardy, though she will have to work hard in evenings and weekends to keep up. While she suffers from vertigo, worsened by stress, and had one episode of vertigo in the trial, she has no basis to think it will re-occur in the fall. She said that whatever I decided would be fine and seemed to me genuinely prepared to continue with the trial. While Mr. Walters’ position is that there is a risk of this juror suffering from fatigue and losing her focus during the trial, I do not think there is a proper basis to discharge her.
[37] Juror #10 is in the fourth year of a five-year apprenticeship to become an electrician. Continuing with the trial will mean a delay of completing his training and puts him behind his peers in terms of securing employment at a higher rate of pay. He also expressed some concerns about a mortgage renewal on his condominium. He has worked during the time the trial has been suspended and indicates that he will be paid if he returns as a juror. Ultimately, he advised that he wants to do the duty he accepted. No counsel suggests that this juror should be discharged. I do not think he should be discharged. While the trial would have some impact on him, I do not think it is of the magnitude that warrants his discharge.
[38] Juror # 12 raised concerns about some financial impact of continuing as a juror in that she makes most of her commission as a sales executive in the last quarter of the year. She thought that continuing as a juror would mean foregoing about five to ten percent of her income, an impact she characterized as “okay”. Her more significant concern was about the fact that she is undergoing fertility treatments and was worried about the cleanliness of the court and the possibility of contracting COVID-19. Information I gave her about the enhanced cleaning protocols and safety measures seemed to me to alleviate her concerns. She expressed a desire to continue and agreed that if there were proper cleaning measures in place, continuing would not really be a hardship for her. No counsel suggested that she should be discharged. I agree that there is no good reason to do so.
D. Conclusion
[39] Regrettably, I have decided to discharge jurors #4 and 11. They will be advised of this and thanked for their service on this jury.
[40] This decision means that there are only nine jurors remaining and, because the parties have indicated that they do not all consent to continuing the trial without a jury, that a mistrial must be declared. The balance of the jury will be advised of this and thanks for their service on this jury.
[41] The accused have been remanded to Tuesday, September 1, 2020 to discuss next steps, contingent on this decision.
J.M. Woollcombe
Woollcombe J.
Released: August 28, 2020
COURT FILE NO.: CRIMJ(P) 1309/18
DATE: 2020 08 28
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
BEALS, BEALS, WALTERS AND BUCKLAND
RULING ON DISCHARGE OF JURORS
PURSUANT TO S. 644(1) OF THE CRIMINAL CODE
WOOLLCOMBE J.
Released: August 28, 2020
[^1]: These dates were selected because counsel for Devin Beals and Clive Walters had both indicated that if a sufficient number of jurors are available to continue the trial, they intend to bring mistrial applications based on the delay in the conduct of the trial between March 16 and September. It was my view that such a motion, for which no materials have yet been filed, would require some time to argue and decide.
[^2]: While the discussions previously had been about a start date on September 14 or 21, Mr. McGuire advised that he has been in an accident and that he will not be medically able to resume the trial before September 30, 2020.