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PROCEDURE - Jury - Challenge for cause - Jurors - Discharge of

Wednesday, June 21, 2017 @ 8:46 AM  


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Appeal by the accused from conviction for first degree murder. The victim’s nephew had orchestrated the murder. The appellant had acted as the middle man and hired a close friend to carry out the killing. The murder had generated a great deal of publicity before trial which raised a concern about the impartiality of prospective jurors. Both the Crown and the defence were permitted to challenge prospective jurors for cause based on pre-trial publicity. The trial judge told counsel he intended to use static triers. Defence counsel did not object to the use of static triers or raise the possibility of using rotating triers. The dialogue between the trial judge and counsel indicated that, because of the concern about pre-trial publicity, both the Crown and the defence wanted all the prospective jurors out of the courtroom during the challenges for cause. The trial judge explained that he would vet each proposed static trier and give defence counsel a chance to object to any person chosen. Defence counsel expressed satisfaction with the trial judge's proposed approach. The appellant did not make a formal application under s. 640(2.1) of the Criminal Code to exclude all jurors from the courtroom, and he did not specifically request static triers. On appeal, the appellant argued that the jury was thus improperly constituted because the trial judge used static triers to decide the challenges for cause. He also submitted that the trial judge erred by discharging without reasonable cause. The juror was discharged after the Crown’s opening address because the trial judge found the juror had serious problems which impacted on his ability to concentrate and understand the evidence. The juror had a broken back, was in a body brace, and was taking medication to control his pain. He was also using a walker and had a significant hearing impairment. Before the formal jury selection began, the trial judge learned that the juror was 70 years old, was a retired biology professor and walked with a walker because he had broken his back. The trial judge allowed him to remain in the jury pool. Both the Crown and the defence also deemed him acceptable and he became a member of the jury.

HELD: Appeal dismissed. The appellant wanted static triers. He did not ask for rotating triers or object to the trial judge's practice of using static triers. His sole concern was that the static triers the trial judge identified be properly vetted. The record showed that defence counsel got what he wanted and, in substance, if not in form, made the requisite application under s. 640(2.1) to exclude all jurors from the courtroom and to use static triers. The jury in this case was thus properly constituted. The trial judge exercised his discretion to discharge the disabled juror reasonably. The trial judge did not discriminate against the juror because of his physical disability. The trial judge was concerned that the juror was unable to perform the duties of a juror. The appellant could not assert the rights of a juror. The juror’s wishes to remain on the jury and defence counsel’s objection to the discharge might be relevant considerations, but the trial judge was not bound by either. A trial judge’s discretion under s. 644(1) of the Criminal Code to discharge the juror was entitled to significant deference from an appellate court. The discharge of the juror did not deprive the appellant of a fair trial, as he was replaced by an alternate juror who passed the challenge for cause and was chosen by the appellant to sit on the jury.

R. v. Kossyrine, [2017] O.J. No. 2496, Ontario Court of Appeal, J.I. Laskin, D. Watt and C.W. Hourigan JJ.A., May 15, 2017. Digest No. TLD-June192017006