COURT FILE NO.: CR. 15-4910
DATE: 2020/10/02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
JOHN JOSIPOVIC
Respondent
– and –
MATO JOSIPOVIC
Respondent
S. O’Brien and A. McLean, on behalf of the Crown
A. Furgiuele and A. Ruffo, for John Josipovic
J. Rosen and S. Smordin, for Mato Josipovic
HEARD: October 2, 2020
A. J. Goodman J.:
RULING ON JURY SELECTION PROCEDURES
[1] Both accused stand charged with the offence of second degree murder. This ruling outlines the procedure and approach to be implemented for the jury selection in this case.
[2] It is undisputed that the COVID-19 pandemic has dramatically affected the manner in which jurors are to be selected and empaneled for this trial.
The Crown’s Application:
[3] Subject to this application, the Crown says that they have been advised that this court proposes to conduct jury selection following a procedure that has come to be known as the “B.C. Model”. This model for jury selection will involve an attendance in court with both accused present. The Registrar will draw numbers from the jury cards to make up groups of 25 to 30. Court staff will then contact the potential jurors to advise them what date and time they are to attend the courthouse for the next stage of the selection process.
[4] The Crown agrees that this procedure would produce a fair and impartial jury. Nevertheless, the Crown takes the position that it does not comply with the jury selection provisions of the Criminal Code, R.S.C. 1985, c. C-46. Instead, the Crown proposes a procedure that accomplishes largely the same thing, whereby the Sheriff’s office would divide the panels into the smaller groups of 25 jurors, in the absence of the accused. This would be accomplished through an order made under s. 22 of the Ontario Juries Act, R.S.O. 1990, c. J.3. The order would require that the panel be divided, and direct that the newly divided panels attend on such dates and times that are consistent with the physical distancing requirements associated with COVID-19.
[5] In sum, the Crown submits that the proposed B.C. Model jury selection process is contrary to the Criminal Code.
The Respondents’ Position:
[6] The respondents submit that there is no problem presented by the B.C. Model for jury selection, as proposed by the court in this case, particularly in the time of COVID-19.
[7] The respondents say that the Registrar will draw out the cards of jurors who comprise the entire panel called for this case. The fact that the cards drawn are for jurors that are part of a large pool ensures that the selection will be truly random. The division of the large panel into smaller sets as proposed by the Crown will reduce the statistical randomness of the selection process. The respondents submit that the Crown’s proposed selection process that is conducted in their absence is prejudicial to their fair trial rights.
Discussion:
[8] Section 631 of the Criminal Code outlines the process for empanelling a jury. It sets out a process by which a panel of potential jurors are summoned to court. Their name, juror number and addresses are placed on cards, which are mixed together in a drum. Subsection (3) stipulates:
If the array of jurors is not challenged or the array of jurors is challenged but the judge does not direct a new panel to be returned, the clerk of the court shall, in open court, draw out one after another the cards referred to in subsection (1), call out the number on each card as it is drawn and confirm with the person who responds that he or she is the person whose name appears on the card drawn, until the number of persons who have answered is, in the opinion of the judge, sufficient to provide a full jury and any alternate jurors ordered by the judge after allowing for orders to excuse, challenges and directions to stand by.
[9] The Crown says that the problem with the B.C. Model proposed method is that the juror is not present in court to respond “that he or she is the person whose name appears on the card drawn.” It is not plausible that Parliament intended for the drawing of names to take place before the summons date and in the absence of the jurors themselves. The provision reads as though the random selection of the juror and the identification of the juror are both to take place in lock-step.
[10] The Crown also says that the proposed procedure is also inconsistent with s. 631(1) and (2). Both refer to the card placed in the drum being from the panel “returned”. Not all panel members appear as directed by summons. Even then, some may be deferred or excused at the courthouse before they appear before a judge. The initial proposal requires that the cards are drawn before the summons date, which would mean that the box will have cards for people who have no intention of responding to the summons. It is not possible that a “returned panel” can mean both the panel list of names and the names of the people who actually attend.
[11] I do not accept these arguments. First, there is no temporal constraint placed in the relevant provision of the Code.
[12] Further, the same process of the “return” or those who have no intention to abide with their summons is a non-starter. Indeed, the same argument can be said when a juror’s number is pulled in the morning and he or she fails to re-attend in the afternoon. In those circumstances, can it be said that the jury selection process is defective?
[13] The Crown proposes that this court resort to the Juries Act (Ontario) in order to divide and then subsequently merge the panel for this trial. Section 22 of the Juries Act states:
A judge of the Superior Court of Justice who considers it necessary may direct that the jurors summoned for a sitting of the Court be divided into two or more sets as he or she may direct, and each set shall for all purposes be deemed a separate panel.
[14] Subsection 22.1 goes on to provide that:
A judge of the Superior Court of Justice who considers it necessary may direct that two or more panels of jurors, including panels established by division under section 22, be merged into a single panel.
[15] The Crown submits that the Juries Act offers a viable alternative to the procedure initially proposed that accomplishes the same end. It does not require a novel interpretation of s. 631(3) of the Criminal Code. The Crown says that is a procedure that is well-grounded in statute and precedent.
[16] The use of the terms “array”- (s. 628 now repealed), “panels”, “sets” or “groups” are often used interchangeably by jurists or lawyers in referring to the Criminal Code or the Juries Act.[^1] While each term is referenced in their respective statute, they are not defined. Nothing should turn on the use or misuse of the terminology.
[17] There is no issue with respect to the application of the Juries Act provisions as suggested by the Crown. It is the extent to which the provision is sought to be applied that poses the issue to be decided.
[18] Under the Juries Act, ss. 5 to 11.1, the Sheriff, who is a provincial official as defined by the Act, establishes a roll of jurors for the jury area, which is defined by regulation, from which a panel is selected. Under s. 13 of the Act, a Superior Court judge may direct the panel to be divided into sets. The members of each set may be told when to come to court during the sittings. If this happens, each set is deemed to be a panel. Section 22 of the Act also allows the division of a panel into sets after jurors have been summoned. In that case, as before, each set is deemed to be a panel.
[19] It is true that this authority has been used in the past to handle the logistics of extremely large jury panels. For example, in R. v. Sandham, [2009] O.J. No. 4566 (S.C.J.). – a large multi-accused homicide trial – the court employed s. 22.1 to direct the merger of multiple panels that were to attend on different days. See also R. v. Valentine, [2009] O.J. No. 5963 (S.C.J.) and R. v. VandenElsen, [2005] O.J. No. 1358 (S.C.J) at para. 22.
[20] In fact, I need not go any further for any other case examples.
[21] In a lengthy and somewhat notorious, case that I presided over in Hamilton in 2016; namely, R. v. Millard, I utilized a similar process to direct the Sheriff to divide 1200 potential jurors into workable panels of 225 for the challenge for cause and peremptory challenges. This was conducted in advance of the jury selection process in court, after full consultation with counsel. The division of panels was premised on capturing the entire jury list for each panel. Eventually, I exercised the provisions contained in s. 22.1 of the Juries Act with the issuance of a Fiat.
[22] In my view, the Crown’s approach and interpretation of Sandham is flawed. In that case, Heeney J. dealt with the entire panel, as I did in Millard, and had the Registrar, in the absence of the accused, divide the whole array into smaller panels (or sets) by its entire list without redactions - and not randomly - into manageable numbers of smaller sets (or groups). It was done in order to accommodate 200 or so jurors from each entire panel in the courtroom for the jury selection.
[23] In Sandham, the actual random selection of the various sets or groups of 25 potential jurors from the drum for the challenge for cause and peremptory challenge was done in front of the accused. This was the same approach that I applied in Millard. In fact, in Millard, I had the panels brought into court for pre-screening and those who were willing to serve were ordered to re-attend at a later date. Again, all of this was conducted in the presence of the accused and their counsel.
[24] Sandham and Millard never stood for the proposition that the panels would be further divided into smaller sets or groups of 20 or 25, through the application of a random selection of jurors in the absence of the accused.
[25] In my opinion, the jurisprudence does not support the Crown’s position.
[26] The pith and substance of the jury selection regime found in the Criminal Code is to permit a fair, random and representative selection process.
[27] I am cognizant that the Court of Appeal has held in numerous recent cases that defects in the jury selection procedure can remove the jurisdiction of that jury to render a verdict. This has been all too unfortunate in some recent high-profile cases, of which many of the issues revolved around the application of the static trier process.
[28] For example, in R. v. Esseghaier, 2019 ONCA 672, the Court of Appeal held that the failure to exercise common law jurisdiction to exclude unsworn jurors during a challenge for cause tried by rotating triers was an error. This error forced the accused to apply for static triers. The Court of Appeal endorsed the holding in Noureddine, that “an error in the method of selecting the jury leads to an improperly constituted court […]” It vacated the conviction and ordered a new trial based on this error alone.
[29] Indeed, I am mindful that these cases paint a cautionary picture when it comes to jury selection. The appellate caselaw is unforgiving of errors in the procedure used to select a jury. It can result in an otherwise sound verdict being rendered moot. Caution is warranted, particularly when there is another available alternative, solidly grounded in existing legislation.
[30] However, the Crown’s argument neglects to contemplate s. 650 of the Code, another important and essential consideration in all criminal jury trials.
[31] Section 650(1) of the Criminal Code provides that: Subject to subsections (1.1) to (2) and section 650.01, an accused, other than an organization, shall be present in court during the whole of his or her trial. While there is some ongoing debate, the selection of a random jury is a substantive right.[^2]
[32] This provision of the Criminal Code is fundamental. A breach of that section has the Court of Appeal rendering innumerable decisions requiring a re-trial. This is premised on the notion of a breach of the accused’s fair trial rights and natural justice.
[33] The process for the smaller groups to be randomized and presented for the challenges in the selection for a petit jury to hear a case of second degree murder, necessitates that the accused be present during the proceedings, unless the exceptions in s. 650(2) arise. Such is not the case here.[^3]
[34] Section 631(3) does not call out for a temporal link between the calling out and drawing of a juror’s number (or name as in the past) and the presentation of that person before the judge. Any such hiatus is not fatal to the process. The section, as worded does not mandate that the two steps of the process must occur simultaneously, on the same day, and in the presence of the juror.
[35] I agree with the respondents in that what is required by the section is that the card must be drawn from the group comprising the entire panel, and once the card is drawn, the juror must be properly identified before the juror can be considered for jury duty in the specific case. On the return date, when the groups selected at random in the presence of the accused are brought forward, the juror can self-identify in front of me and the two accused; and be ready for presentation, whether eventually excused, deferred, or moving on to the various challenges.
[36] If the juror fails to appear or is mis-identified, that card and/or person is set aside by the court and the next card and person are dealt with.
[37] The distinct advantage of the B.C. Model is that, in the end result, the jurors will be randomly selected, properly identified in open court and ultimately called to the book to be sworn, all in the presence of the accused before any challenge may be raised or the juror is accepted. It allows for the accused to be present for and engaged in the trial process, particularly in the selection of the petit jury.
[38] Recall that s. 631(3) of the Criminal Code is for the benefit of the presiding jurist to determine that the number of persons “who have answered is, in the opinion of the judge, sufficient to provide a full jury and any alternate jurors ordered by the judge after allowing for orders to excuse, challenges and directions to stand by”.
[39] I am mindful that we are in the midst of a pandemic and social distancing in the courtroom is fundamental. This requires an innovative and considered approach to jury selection.
[40] In my opinion, invoking the B.C. Model satisfies both the wording, spirit and intent of the applicable sections. It serves to address the current physical distancing requirements by virtue of the pandemic reality and facilitates full compliance with s. 650(1). Any further breakdown of the sets of 200 or so members of the original panel into sub-sets or groups of 25 or so jurors by the drawing of numbers from the drum in the absence of the accused would violate the Code. As such, if I am in error, I am confident that reliance can be made to the saving provision found in s. 643(3) of the Criminal Code.
[41] Therefore, the process to be implemented in this case will be what has been referred to as the B.C. Model of jury selection.
[42] The Crown’s application to have the Sherriff further divide the panels into sets or groups of 25 in the absence of the accused, is hereby dismissed.
Other Jury Selection Matters:
[43] In addressing the methodology for selecting the jury, we will have exclusive use of courtroom 600 in Hamilton. Courtroom 600, the largest courtroom in the Hamilton courthouse can only accommodate approximately 28 potential jurors due to the COVID-19 physical distancing requirements.
[44] Approximately 650 individuals were originally summoned. I am leaving open the option of arranging for a final backup group of 200 potential jurors for the second week, if necessary.
[45] We will require a very large group of potential jurors to ensure an adequate number of potential jurors available for selection. This is necessary, given the COVID-19 pandemic and related issues along with the statistical analysis that about 80% of the panel will be unavailable to sit on a case of this length, primarily for financial reasons.
[46] Jury selection will commence on October 2, 2020 with the Registrar pulling numbers form the various panels to form groups of 28 potential jurors. This process will form the first two panels, followed by the next two panels and continue until all of the remaining panels have been selected into the smaller groups at random. At the conclusion of the entire selection process, I shall issue a Fiat to combine panels, as the case may be. In any event, this entire procedure will be conducted in the presence of both accused, as it forms part of the trial for the purposes of s. 650(1) of the Code.
[47] On October 13, 2020, the first day of trial, the first two panels will arrive for the 10:00 am session. One group will be situated in the courtroom. The other group will be present in an adjoining courtroom and be linked by video. The arraignment [^4] will occur followed by my opening remarks. This will include my opening instructions, addressing matters of suitability and then moving to presentation for both the challenge for cause and peremptory challenge.
[48] The next two panels will arrive for the afternoon session commencing at 2:00 p.m. No further arraignment will be conducted but my opening remarks must be repeated. Therefore, I will have the Registrar read out the charge before each of the group(s), followed by the accused’s respective recorded plea. I will then repeat my opening instructions. This process will be repeated and continue for the remainder of the week with all of the remaining groups until 12 jurors and two alternates are selected.
[49] Jurors will be brought before the court individually for purposes of pre-screening for availability, in the order in which they have been randomly selected. I have been disinclined to make a common law order to have sworn jurors excused from the selection process when there are rotating triers. However, I had resiled from that stance based on counsel’s submissions and my revised oral ruling in the R. v. Millard case (2015 unreported). Further, the regime in s. 640 has been modified by recent legislation.
[50] All counsel are keenly aware of the publicity in this case and efforts to ensure a full, fair and impartial challenge for cause process. Counsel agree that, to the extent that we can do so, ensure adequate steps are taken in order that potential jurors are not tainted by others who may provide a strong view during the selection process. The specific wording of the challenge for cause question is to be discussed between counsel.
[51] Finally, as counsel can appreciate, the procedures outlined in this ruling may be modified or adapted as necessary in the interests of a just and fair trial.
A.J. Goodman J.
Date: October 2, 2020
COURT FILE NO.: CR.15-4910
DATE: 2020/10/02
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JOHN JOSIPOVIC
and
MATO JOSIPOVIC
RULING ON JURY SELECTION PROCEDURES
A. J. GOODMAN, J.
Released: October 2, 2020
[^1]: The Criminal Code refers to panels. The Juries Act refers to precepts, panels and sets. [^2]: Subject to the appeal now before the Supreme Court of Canada in the case of R. v. Chouhan. At the very least, the accused’s presence or absence during the whole of his trial was not at issue in that case. [^3]: This is even more crucial with the Bill C-75 provisions eliminating peremptory challenges, (currently under a Constitutional appeal to the Supreme Court of Canada). [^4]: I agree with Heeney J.’s discussion regarding multiple panels and the arraignment process in Sandham. This has been my approach in Millard and other multiple-accused homicide cases. The Criminal Code is silent on this issue. It is counter-productive to have multiple arraignments. In my view, an accused ought only to provide his plea and be formally arraigned but once in any criminal trial.