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PROCEDURE - Jury - Jurors - Discharge of - Trial judge’s duties

Thursday, April 01, 2021 @ 9:37 AM  


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Appeal by Lewis from her conviction, by a jury, of importing cocaine. In the trial judge’s charge to the jury, he instructed jurors to take their instruction on the law from him and not consult other sources. Prior to the verdict, it was discovered that Juror #4 brought into the jury room two articles the juror had found on the Internet. One article addressed how to select a jury foreperson and the other addressed the meaning of reasonable doubt. The trial judge conducted an inquiry. Most jurors advised they had not looked at the articles, which conflicted with Juror #4’s statement that all jurors had read the foreperson selection article. The trial judge discharged Juror #4 but did not declare a mistrial as he was satisfied the remaining jurors would faithfully discharge their duties. Prior to trial, the appellant brought a s. 11(b) application but could not perfect it as she was unable to secure funding for transcripts. The appellant was convicted in February 2019 and sentenced in July 2019. The delay of five months and three days was largely due to the scheduling of a Gardiner hearing to determine the quantity of cocaine imported. There was no video of the appellant’s passage through the airport because of a computer system failure.

HELD: Appeal dismissed. The trial judge made no error in dismissing the application for a mistrial. The trial judge conducted an appropriate inquiry and reached a reasonable conclusion about the fitness of the remaining jurors and the fairness of the trial. He did not err in concluding the presumption that the jurors would perform their duties and follow the instructions they had been given had not been rebutted. There were no transcripts and therefore no evidential foundation on which the s. 11(b) claim could be advanced for delay pre-conviction. The Gardiner hearing was an exceptional circumstance. The delay between conviction and sentencing, after taking the necessity of the Gardiner hearing into account, reduced the net delay to well under the five-month ceiling and did not constitute unreasonable delay. The jury instruction on the lost video was sufficient and fair for the jury to understand the defence position.

R. v. Lewis, [2021] O.J. No. 440, Ontario Court of Appeal, P.S. Rouleau, K.M. van Rensburg and B. Miller JJ.A., February 1, 2021. Digest No. TLD-March292021007