No inquiry of juror absent misconduct during trial

R v Poon, 2012 SKCA 76 deals with an unusual situation. After the start of trial information came to the court in a jury trial that a juror had been the victim of a crime similar to that which was it issue at trial. There was no suggestion the juror had done anything improper during the trial or had misled the court before becoming a juror. The trial judge declined to make special inquiry of the juror and the Court of Appeal agreed:



[13] After adjourning the matter overnight, Malone J. gave thoughtful reasons why he was not prepared to conduct any further inquiries of either the caller or the juror (see: Transcript, pp. 633-36). Malone J. began his reasons by recounting these factors: (i) he had already asked, during jury selection, whether any of the prospective jurors had been a victim of sexual assault and, if so, whether he or she could nonetheless act impartially; (ii) the jurors had sworn an oath saying that they would deliver a true verdict; and (iii) during his opening instructions he had explained a series of fundamental principles, including the presumption of innocence and the Crown's obligation to prove its case beyond a reasonable doubt. He then concluded his reasons with the following:

This is not a situation where there are allegations of misconduct by a juror during a trial or during deliberations. The situation here is that a person has advised the Local Registrar that because of a past history a juror may not be impartial. However, just because a person has been selected to act as a juror it doesn't give the court or anyone else the licence to ask personal and intimate questions, no matter how diplomatically they are phrased, about their past life. I refer to the safeguards in place to ensure that a juror acts impartially, and I'm not prepared to, in effect, ignore these safeguards on the basis of unsubstantiated allegations. I must assume that the juror in question does not hold a bias with respect to the accused or the Crown, that the juror will be true to the oath taken, and the juror will follow the instructions I have referred to when the jurors retire to consider their verdicts.... [Transcript, p. 635; emphasis added.]

Malone J. then imposed a publication ban with respect to any information that would identify either the caller or the affected juror, and sealed the envelope containing the Local Registrar's memorandum and notes of the call. With that, the trial resumed.



[14] On appeal, Dr. Poon asks this Court to quash his client's convictions on the basis of a miscarriage of justice (see: s. 686(1) <http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec686subsec1_smooth> (a)(iii) of the Criminal Code <http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html> ), arising from an apprehension of bias on the part of the juror bearing the same surname as the caller. This ground of appeal starts with the submission that Malone J., having been apprised of information about the juror, was required to make inquiries of her. In support of this proposition, Dr. Poon relies upon R. v. Tsoumas (1973), 11 C.C.C. (2d) 344 (Ont. C.A.); R. v. Andrews 1984 CanLII 809 (BC CA), (1984), 13 C.C.C. (3d) 207 (B.C.C.A.); R v. Budai, 2001 BCCA 349 (CanLII), 2001 BCCA 349, 154 C.C.C. (3d) 289 at para. 40, leave to appeal to SCC refused, [2002] 1 S.C.R. vii; R. v. Blackwell, [1995] 2 Crim. App. R. 625; and R. v. Hertrich reflex, (1982), 67 C.C.C. (2d) 510 (Ont. C.A.), leave to appeal to SCC refused, [1982] 2 S.C.R. x.



[15] While these decisions are clearly authoritative, they do not apply to this case. In each of them, the juror in question acted in an allegedly improper wayvis-à-vis the accused or the Crown. For example, in Andrews the juror smiled at the accused and gave the impression that she was acquainted with him. InTsoumas, two witnesses observed defence counsel speaking to a juror in the hallway. In Budai, it was "improper and continuous" eye contact between one of the accused and a female juror—again giving the impression of a relationship between the two. In Hertrich, the issue was juror tampering. Nothing similar exists in this case.



[16] The within appeal presents a different sort of dilemma regarding the extent to which the criminal justice system need concern itself with the private life of a sworn juror. In resolving that dilemma, the trial judge mentioned the key factors that set this case apart from the authorities cited by the defence. First, jurors are expected to bring their entire life's experiences to the task of judging (see: R. v. Pan, 2001 SCC 42 (CanLII), 2001 SCC 42, [2001] 2 S.C.R. 344 at para. 61). Second, all jurors, including a juror who has been the victim of a crime, are presumed by the process and their oaths to judge impartially (R. v. Williams, 1998 CanLII 782 (SCC), [1998] 1 SCR 1128 at para. 13, R. v. Spence, 2005 SCC 71 (CanLII), 2005 SCC 71, [2005] 3 S.C.R. 458 at paras. 21-22) and R. v. K.(A.) 1999 CanLII 3793 (ON CA), (1999), 176 D.L.R. (4th) 665 (Ont. C.A.) at para. 52, leave to appeal to SCC refused, [2000] 1 S.C.R. v. Third, the Canadian justice system is sensitive to the privacy interests of prospective jurors (see: Williams, at paras. 51-53). In furtherance of that end, the Canadian system does not permit the pre-questioning of jurors (see:Williams at para. 13; R. v. Find, 2001 SCC 32 (CanLII), 2001 SCC 32, [2001] 1 S.C.R. 863 at para. 26). If Dr. Poon had been aware of the allegations against the juror before she had taken her oath, he would not have been permitted to question her about them or to successfully challenge her for cause on the basis of them. If the judge had questioned the juror during the trial, he would have brought about a result that could not have been effected prior to trial.