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Criminal - Jury Selection. R. v. Zhou
In R. v. Zhou (Ont CA, 2024) the Ontario Court of Appeal dismissed a defendant's criminal appeal, here where the convictions were for "sexual assault and forcible confinement."
Here the court considers 'jury selection', and juror discharge, issues:[30] I agree with amicus that the trial judge committed an error in the procedure he used for allocating peremptory challenges. However, I agree with the respondent that this was a procedural error that did not cause prejudice, and the curative proviso in s. 686(1)(b)(iv) of the Criminal Code should therefore apply.
[31] Prior to the abolition of peremptory challenges in 2019, s. 634(2)(b) of the Criminal Code entitled an accused (and the Crown) to 12 peremptory challenges on a jury trial involving the offences with which the appellant was charged: see R. v. Chouhan, 2021 SCC 26, [2021] 2 S.C.R. 136, at para. 10. Section 634(2.1) provided for the addition of one peremptory challenge in respect of each alternate juror. The provision was worded as follows:If the judge makes an order for alternate jurors, the total number of peremptory challenges that the prosecutor and the accused are each entitled to is increased by one for each alternate juror. [Emphasis added.] [32] The trial judge appears to have interpreted ss. 634(2)(b) and 634(2.1) in combination to mean that the first 12 peremptory challenges were to be applied to the selection of the 12 jury members and the next 2 peremptory challenges were to apply to the selection of the alternate jurors. However, this does not accord with the plain wording of s. 634(2.1), which referred to the “total number of peremptory challenges” being “increased by one for each alternate juror” (emphasis added).
[33] Moreover, the trial judge’s interpretation is incongruous with the fact that s. 634(2.01), which addressed the number of peremptory challenges when a jury of 13 or 14 members was appointed, used almost identical language to s. 634(2.1):If the judge orders under subsection 631(2.2) that 13 or 14 jurors be sworn in accordance with this Part, the total number of peremptory challenges that the prosecutor and the accused are each entitled to is increased by one in the case of 13 jurors or two in the case of 14 jurors. [Emphasis added.] [34] Interpreting s. 634(2.01) consistently with how the trial judge interpreted s. 634(2.1) would create a distinction between the selection of the first 12 jurors and the remaining jurors that is not supported by the plain language of s. 634(2.01) or of any Criminal Code provision referring to additional jurors.
[35] The Crown argues that the trial judge was simply exercising his trial management powers. I disagree. Trial judges have broad trial management powers, but these powers are limited to discretion over matters that are not contrary to provisions in the Criminal Code: R. v. Province, 2019 ONCA 638, at para. 89. As reviewed above, the wording of s. 634(2.1) was clear; it did not suggest that a trial judge had the discretion to distinguish between peremptory challenges available to challenge jurors and alternate jurors.
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[43] The threshold for establishing reasonable apprehension of bias is high, and the trial process incorporates many safeguards to protect against potential jury partiality: R. v. Tutiven, 2022 ONCA 97, 411 C.C.C. (3d) 475, at para. 24, leave to appeal refused, [2022] S.C.C.A. No. 275. In this case, the concern that the alternate juror may not have been impartial because Juror #12 was one of the triers is speculative. In the absence of any further evidence raising concerns about the alternate juror, I see no merit to this ground of appeal.
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[47] There is a strong presumption that jurors will discharge their duties with impartiality and a heavy burden on parties who seek to rebut that presumption: R. v. Dowholis, 2016 ONCA 801, 133 O.R. (3d) 1, at para. 18; R. v. Godwin, 2018 ONCA 419, at para. 14. When deciding whether to discharge a juror pursuant to s. 644 of the Criminal Code, the trial judge is to approach the issue from a presumption that jurors follow their duties in accordance with the trial judge’s instructions and the oath they made: R. v. Durant, 2019 ONCA 74, 144 O.R. (3d) 465, at para. 146.
[48] The threshold for discharging a juror based on a reasonable apprehension of bias is high: Dowholis, at para. 19. As Watt J.A. explained in Durant, at para. 150, the test is viewed from the perspective of a reasonable person:The apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining the required information about it. The grounds for the apprehension must be substantial. The test is what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. [Citations omitted.] [49] On appeal, the trial judge’s decision not to excuse a juror on the basis of alleged bias is owed substantial deference and is only to be set aside if it was tainted by an error of law or principle, there is a misapprehension of material evidence or if it is a decision that is plainly unreasonable: Durant, at para. 152.
[50] In this case, the trial judge found the information that the appellant brought to his attention about Juror #2’s writing and work experience was not an adequate basis to justify further inquiries into her capacity to act as an impartial trier of fact.
[51] His conclusion on this issue was consistent with decisions of the Supreme Court and this court, which have held that an individual’s prior personal experience or work in the area of sexual violence does not, on its own, render that person incapable of deciding a sexual assault case impartially: R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at paras. 98-100; R. v. A.B. (Betker) (1997), 1997 CanLII 1902 (ON CA), 33 O.R. (3d) 321 (C.A.), at p. 342, leave to appeal refused, [1997] S.C.C.A. No. 461. See also R. v. Poon, 2012 SKCA 76, 399 Sask. R. 89, at para. 16.
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