COURT FILE NO.: CR-18-1309-00
DATE: June 22, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Brian McGuire and Peter Maund for the Crown
- and –
DEVIN BEALS
R. Roots Gadhia for Applicant Devin Beals
CLIVE WALTERS
ALEX BUCKLAND
Alonso Abbey for Applicant Clive Walters
Terry Kirchenko for Applicant Alex Buckland
HEARD: March 22, 2022
RULING ON MISTRIAL APPLICATION
D.E HARRIS J.
i. Introduction
[1] The three accused, charged with first degree murder, moved for a mistrial after a juror was discharged during the second day of this trial. These are the reasons for dismissing the motion at the time.
ii. Discharge of the Juror
[2] One of the alternate jurors, after being discharged as required by the Criminal Code upon commencement of the Crown’s evidence, make a phone call to the court’s administration. She advised that after the Crown’s opening statement but before any evidence was called, while on break in their jury room, she heard one of her fellow jurors say something to the effect of, “He’s guilty.” The alternate juror is to be commended for bringing this matter to our attention.
[3] An inquiry was held. The alternate juror testified to what she heard and the juror in question testified. The upshot was that the juror agreed that she had said what was alleged but maintained that she nonetheless had an open and impartial mind. All counsel agreed that the juror had to be discharged to protect the appearance of juror impartiality.
[4] The remaining 13 jurors were advised that the juror had to be discharged. At the time, she had only heard the indictment read out, my opening comments and the Crown’s opening. I instructed the jury,
Her comment has lead me to the conclusion that [she] did not appear to be impartial, objective or unbiased. Similarly there was a concern that she did not appear to be prepared to render a true verdict based on the evidence. These duties—impartialty, objectivity lack of bias, and rendering a true verdict based on the evidence-- are absolutely crucial for you as members of this jury. Indeed, this is what you promised to do when you were affirmed.
And so these are the reasons that [the juror] was discharged. Unfortunately it was necessary. Thank you.
iii. The Mistrial Application
[5] All three defence counsel moved for a mistrial on the basis that the discharged juror’s assertion of her belief in guilt while in the jury room could well have infected the other jurors. There was a dark cloud hanging over the proceedings. The Crown opposed a mistrial.
[6] I do not agree with the Applicants. The circumstances cannot support a reasonable concern that the presumption of the integrity and impartiality of the other jurors was damaged. Clearly the jurors’ off the cuff statement opining that the accused were guilty was not based on anything of substance. She had not yet heard any evidence. A reasonable jury member would not be affected by a statement of guilt lacking any foundation in logic or reason.
[7] The alternate juror testified that at the time the remark was made, several of the other jurors openly disagreed and criticized what she had said. While it is not clear precisely what response they made, these jurors came quickly to the defence of the principles of keeping an open mind, the presumption of innocence and acting only on evidence.
[8] The Applicants argued that because all of the jurors did not leap to attack the juror’s statement presupposing guilt they therefore somehow acquiesced in it. This cannot be accepted. After several jurors voiced their disapproval, the normal response from the others would not be to gang up on or bully the one juror. Her statement had already been denounced by several jurors and there was no need to reiterate what had already been clearly said. Sixteen strangers put together in a room for the first time,(there were two additional jurors and two alternate jurors in the jury room along with the usual 12 jurors) would be unlikely to take an aggressive approach with one of their cohorts. The point had already been made, quite emphatically.
[9] I am convinced that there was no tainting of the jury nor an appearance of tainting. If anything, it was a teachable moment for the remaining juors reiterating the importance of the key values upon which our system of criminal justice is built.
D.E HARRIS J.
Released: June 22, 2022
COURT FILE NO.: CR-18-1309-00
DATE: June 22, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Appellant
- and –
DEVIN BEALS
CLIVE WALTERS
ALEX BUCKLAND
Respondents
RULING ON MISTRIAL APPLICATION
D.E HARRIS J.
Released: June 22, 2022