No mistrial where validly discharged juror's vote is revealed: Ontario Court of Appeal

Poorly organized search warrant application, information gaps lead to acquittal

No mistrial where validly discharged juror's vote is revealed: Ontario Court of Appeal

If a juror has been discharged on proper grounds, such as an unwillingness to perform their responsibility, the disclosure of their vote during an inquiry would not necessarily jeopardize trial fairness, the Ontario Court of Appeal has found.

In R. v. Wise, 2022 ONCA 586, a victim was shot once in the back of his head and four times in the back. The respondent became the primary suspect, as the police investigation found that he expressed negative feelings about the victim, including saying that he did not want the victim around anymore.

The Crown relied entirely on circumstantial evidence and the respondent’s post-offence conduct. A jury found him not guilty of second-degree murder after one of the jurors had been discharged. The Crown appealed and asked for a new trial.

The appellate court ruled that the trial judge appropriately discharged one of the jurors and refrained from declaring a mistrial. The process was fair to the parties and was done in open court, on the record, and in the presence of the accused and counsel.

The trial judge discharged the juror because of his misconduct, not his opinion, the appellate court noted. The judge conducted a careful and limited inquiry into this misconduct and issued an instruction to the remaining jurors clarifying that the juror’s removal should not be considered a disapproval of his opinion, the appellate court said.

The inquiry revealed the vote of only the discharged juror. The remaining jurors deliberated for a day-and-a-half before returning a verdict. According to the appellate court, this was strong evidence that the respondent received a fair and valid verdict and that the juror’s discharge did not affect the honesty of the deliberations.

In addition, the appellate court saw no basis to interfere with the application judge’s decision on a s. 8 charter application. The appellate court disagreed with the Crown’s argument that, because a 2014 information-to-obtain (ITO) provided a reasonable basis to conclude that the issuing justice could issue the warrant, the searches in 2014 and 2016 did not violate the respondent’s s. 8 rights.

The 2016 ITO did not amount to reasonable and probable grounds to believe that the respondent was guilty of any other murder or that serial killers would probably keep souvenirs of their crimes, the appellate court added.

“It was evident that there were gaps in the information available to the police, which the 2016 affiant attempted to fill by including the expert opinion of forensic psychiatrist Dr. Collins, who was asked to provide an opinion on whether the respondent would still be in possession of ‘souvenirs’ belonging to [the deceased],” wrote Justice Jonathon C. George for the appellate court.

Lastly, the application judge made no errors by excluding the evidence under s. 24(2) of the charter. The Crown had contended that the judge failed to follow the approach in R. v. Rocha, 2012 ONCA 707, which provided that the warrant process favoured admitting the evidence unless a warrant was obtained through false or deliberately misleading information, the ITO’s drafting subverted the process, or it was otherwise misleading.

The appellate court, again disagreeing with the Crown’s argument, determined that the application judge did not misapply Rocha. The judge had found that the ITO was poorly organized and filled with errors. The judge also noted that the ITO included an expert opinion relying on an unsupported police assertion that the applicant had kept souvenirs in the past.

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