Court File and Parties

COURT FILE NO.: CR-21-10000647-0000 DATE: 20240425 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – ENRIQUE HUMBERTO MARTINEZ-REYNOSA Defendant

Counsel: Ethan Garber, for the Crown Marcel Buchler and Randall Baran, for Enrique Humberto Martinez-Reynosa

HEARD at Toronto: March 1, 2, and 3, 2024

Notice of Restriction on Publication

Pursuant to s. 486.4(1) of the Criminal Code, information that may identify the complainant or a witness may not be published, broadcasted, or transmitted in any manner.

J.K. Penman J.

Ruling Re Discharge of Juror

Overview

[1] Mr. Martinez-Reynosa was tried before a jury on three counts of sexual assault alleged to have occurred on July 13, 2018. Mr. Martinez-Reynosa and the complainant were co-workers and friends. After a night of drinking at a local bar, Mr. Martinez-Reynosa, the complainant, and others returned to the complainant’s apartment to continue drinking and socializing. It is alleged that at three different points that night and into the morning, Mr. Martinez-Reynosa sexually assaulted the complainant while she was unconscious or asleep. A.S. testified that she did not consent to any sexual activity with Mr. Martinez-Reynosa. The issues at trial were consent and capacity to consent.

[2] The jury began their deliberations on February 29th. On March 3rd, after receiving a series of notes from the jury foreperson and a single juror, I discharged juror #9 pursuant to section 644(1) of the Criminal Code. A few hours later the remaining jury returned with verdicts of not guilty on count one, and guilty on counts two and three. These are my reasons for discharging the juror.

Analysis

[3] As Dickson J., said in R. v. Basarabas (1982), 2 C.C.C. (3d) 257 (S.C.C.) at 265 “an accused should not be lightly deprived of his or her right to be tried by a jury of twelve persons”. There is, however, a broad discretion to discharge a juror if the court is satisfied that the juror “cannot continue to act by reason of illness or other reasonable cause.”

[4] Importantly, as Blair J.A., said in R. v. Giroux, 2006 CarswellOnt 2102 (Ont. C.A.) at para. 30, “This language is broad enough to encompass a situation where the conduct of a juror threatens to interfere with the integrity of the jury process and the ability of the jury to carry out its deliberations in such case.”

[5] On March 1st I received a note from a single juror. The juror identified themselves by juror number, and in some detail spoke about their deliberations. The note did not have a question, but it was clear the juror was using discriminatory thinking, speculating, and considering matters not in evidence. In my view this note engaged the “jury secrecy rule”. I ordered that the jury stop deliberating and given my belief that the notes violated the jury secrecy rule, ordered the note be sealed and provided a ‘judicial summary’ of the note to counsel.: see R. v. M.B., 2020 ONCA 84 at paras. 2, 10-11 and 12-13; R. v. Wight, 2022 ONSC 2950 at para. 31.

[6] The importance of jury secrecy to the integrity of the trial process is based on three goals: (1) to promote full and frank deliberations free from extrinsic pressures; (2) to assure the finality and authority of the verdict; and (3) to protect jurors from repercussions: R. v. Pan; R. v. Sawyer (2001), 155 C.C.C. (3d) 97, at paras. 50-52; M.B. at para. 6.

[7] Arbour J., in Pan writing the unanimous judgement of the court said the following at para 77:

In light of the above, in my view a proper interpretation of the modern version of Lord Mansfield’s rule is as follows: Statements made, opinions expressed, arguments advanced and votes cast by members of a jury in the course of their deliberations are inadmissible in any legal proceedings. In particular, jurors may not testify about the effect of anything on their or other jurors’ mind, emotions or ultimate decision. On the other hand, the common law rule does not render inadmissible evidence of facts, statements, or events extrinsic to the deliberation process, whether originating from a juror or from a third party, that may have tainted the verdict.

[8] I sought input from counsel as to how to respond to the juror and what if any action should be taken. Crown counsel argued that the juror should be discharged. Mr. Buchler for Mr. Martinez-Reynosa argued that there should be a mistrial and any other course of action would be a miscarriage of justice. I asked counsel their positions on whether the juror should be brought in for a s. 644(1) inquiry. Neither counsel thought that was appropriate.

[9] Although the jurors note was concerning, in my view discharging the juror was premature. I was not satisfied that the juror was incapable of continuing, and it was clear from the note that they wished to continue. A mistrial is a remedy of last resort and there was no basis based on the one note to declare a mistrial. A trial judge has broad powers to declare a mistrial but before doing so must be satisfied that no remedy short of that relief will adequately address the actual harm occasioned. I declined to grant the mistrial and provided reasons at the time for that decision.

[10] The next morning, March 2nd, the jury was brought in as a whole and told that I had received their note. I explained that as there was no question, I did not have a particular answer to give them. I proceeded to caution the jury they were to consider the evidence objectively and fairly, and that they were to rid their minds of any preconceived notions, biases, or stereotypes. I reminded them that they were to base their decision on the evidence that was heard in the courtroom, that they must not speculate about what evidence there might have been or permit themselves to guess or make up theories. I reminded them of their duty as jurors to render an impartial verdict based on the evidence heard in the courtroom alone, and that they were to follow my instructions.

[11] Later that day, March 2nd, I received a note from the jury foreperson indicating that they were at an impasse because one of their members was not working collaboratively with them, the juror was speculating about matters not in evidence, and appeared to not understand the law. The note asked for clarification as to the law on consensual touching.

[12] The note was clear that the jury foreperson was speaking of one juror. I sealed the note and when I read the note into the record, I referred to the “minority” as opposed to the single juror. I was again not prepared to declare a mistrial given that when reading the note as whole, it was obvious the jury was clearly committed to the process and asked a question. I brought the jury in and reinstructed them on the law of consensual touching. I also provided them with an exhortation, and another caution about not engaging in discriminatory thinking. The jury then resumed their deliberations.

[13] The next day, March 3rd just before lunch I received two notes: one from the jury foreperson and one from the same single juror as earlier. The note from the jury foreperson again indicated they were at an impasse because of one juror who was being combative, refusing to listen to their fellow jurors, speculating, twisting the evidence, not employing logic, and demonstrating a lack of impartiality. The note ended with the question “How can we move forward?”.

[14] The note I received from the single juror was lengthy, detailed, and again revealed deliberations. It was also clear the juror was making findings for which there was no basis in the evidence, speculating, misapprehending the law and the evidence, and believing evidence was being withheld from the jury. Again, in my view, this note clearly engaged the “jury secrecy rule”.

[15] Just prior to going into court to advise counsel of the latest notes and to obtain their input, I received two more notes in quick succession from the same single juror. Both notes continued in the same vein with a recitation as to their deliberations, revealed discriminatory thinking, further misapprehensions of the law and evidence, including questioning the difference in testimony from a witness under oath versus a witness who has affirmed.

[16] The notes provided by the juror, in my view again all violated the “jury secrecy rule”. The juror provided details as to their deliberation process, opined on the evidence, argued a position, and made clear which way they would decide the case. None of the notes from the single juror suggested that they had been “exposed to some information or influence from outside the jury”, such that no inquiry was necessary in the circumstances.: see Pan; Sawyer at paras. 55 and 59.

[17] I sealed the three additional notes from the single juror. When speaking with counsel I provided them a summary of the contents of the notes as follows:

a. The juror is of the belief that the text messages are not authentic and fabricated; b. The juror has drawn conclusions on matters for which there is absolutely no basis in the evidence; c. The juror is of the view that evidence is being deliberately kept from the jury; d. The juror is of the view that there is a difference in the testimony of someone who has affirmed versus someone who has sworn an oath; e. The juror is employing discriminatory stereotypes and biases; f. The juror is misapprehending the evidence and the law; g. In all the notes the juror is discussing matters that are not in evidence, and that have nothing to do with the trial; h. The juror is distracted by aspects of their education that have no bearing on the trial and is non-sensical.

[18] Crown counsel’s position was that the juror should be discharged. Mr. Buchler’s position was that the juror should have been discharged earlier and that there should be a mistrial.

[19] I formally opened a s. 644(1) inquiry and filed all the sealed notes from the single juror on the application. Section 644(1) of the Criminal Code allows for the discharge of a juror where the trial judge is satisfied that a juror should not by reason of illness or other reasonable cause, continue to act. When considering whether to discharge a juror, the process undertaken by trial judges should comply with the following considerations as set out in Giroux at para. 35. Specifically, the process:

i) Must be fair to the parties and to all members of the jury; ii) Must be open, in the sense the trial judge’s inquiries should take place in open court, on the record, and in the presence of the accused and counsel; iii) Must enable the trial judge to determine the true nature of the internal problem faced by the jury, and to resolve it; and, iv) Must preserve the integrity, confidentiality, and impartiality of the jury deliberation process.

[20] In this case I chose not to make additional inquiries of the juror in court as I was satisfied that doing so would “necessarily invite an examination into the inner workings of the deliberative process and would necessarily require disclosure of what went on within the confines of the jury room.”: see R. v. Ferguson, 2006 ABCA 36 at para. 52. I already had concrete insight into the ‘inner workings of the deliberative process’ of the juror, and further inquiry was not required.

[21] It is always of concern that the internal strife in question might be “merely reflective of an inability on the part of the jury to agree, as opposed to an inability to deliberate.”: Giroux para. 28. In this case I believed that the conduct of the juror was preventing the jury from deliberating. I based this on all the notes I received and statements from the jury foreperson such as, “there is a refusal to listen to the other jurors and to keep an open mind”, “this juror has been combative, resistant and has on many occasions expressed a desire to leave the jury room”, “there doesn’t seem to be any way forward in our deliberations due to the refusal of calm, logical discussion from a certain juror”, “it feels like we are just going around in circles at this point”.

[22] The jury foreperson also indicated that they were doing their best to come up with a solution. The final note from the jury foreperson ended with the question, “how can we move forward?”, which in my viewed again indicated a desire on the part of the jury to bring the matter to a proper conclusion.

[23] I was not prepared to declare a mistrial but was of the view that the juror needed to be discharged for the following reasons: The juror was either incapable of or refusing to follow my instructions; the juror was misapprehending the law; speculating about matters not in evidence; employing discriminatory beliefs and stereotypes, making findings about matters not in evidence; and refusing to work collaboratively with the other jurors.

[24] I brought the juror in and immediately provided them with a caution not to discuss the contents of their notes or their deliberations in the courtroom or once they left the courtroom. I provided a general explanation as to why they were being discharged, thanked them for their service and discharged the juror.

[25] The jury was brought in and told to resume their deliberations as a jury of eleven. The jury returned a few hours later with a verdict of not guilty on count one, and verdicts of guilty on counts two and three.

Conclusion

[26] This was not an issue of disagreement as to the verdict, but one of an inability on the part of the jury to deliberate together as a group. The jury was committed to seeing the matter through but were unable to do so with one juror who was deliberating in various impermissible ways outlined above. The charges stem from 2018 and both Mr. Martinez-Reynosa and the complainant were entitled to have the matter brought to a proper conclusion.

[27] For all these reasons, I was satisfied based on the notes I received that the one juror’s misconduct was interfering with the ability of the jury to carry out its deliberations and needed to be discharged.

J.K Penman J.

Released: April 25, 2024