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Tom Rees | Criminal Defence Lawyer Winnipeg

New Trial Ordered in Cocaine Trafficking Case

An Ontario man is getting a new trial after a jury of twelve was unable to reach a unanimous verdict.

During the deliberations, some jurors complained to a court official about the conduct of two of the jurors. The jury was encouraged to put their concerns in writing to the Judge and upon receiving the complaint, the Court dismissed the two impugned jurors.

[2]         Upon receipt of the complaints, the trial judge embarked upon a lengthy inquiry of each individual juror, and a number of further inquiries of the two impugned jurors. The trial judge ultimately discharged both jurors. Defence counsel’s motions for a mistrial were denied. Following the discharge of the second juror, after about an hour of further deliberations, the ten-member jury convicted the appellant.

The primary issue is whether the Trial Judge’s decision to dismiss the two jurors resulted in an unfair trial. The Court reviewed some of the applicable law:

[35]      An accused has the common law right to be tried by a jury of twelve who reach a unanimous verdict. Section 644 of theCriminal Code, R.S.C. 1985, c. C-46, describes the exceptional circumstances when a maximum of two jurors may be discharged. It provides:

644. (1) Where in the course of a trial the judge is satisfied that a juror should not, by reason of illness or other reasonable cause, continue to act, the judge may discharge the juror.


(2) Where in the course of a trial a member of the jury dies or is discharged pursuant to subsection (1), the jury shall, unless the judge otherwise directs and if the number of jurors is not reduced below ten, be deemed to remain properly constituted for all purposes of the trial and the trial shall proceed and a verdict may be given accordingly.

In conclusion:

[72]       This was a case of juror strife, where the jury panel was unable to agree on an outcome. The trial judge’s numerous inquiries of the jurors necessarily probed the content of their deliberations and undermined the secrecy of the deliberative process. The inquires led to the discharge of one juror, then to the discharge of the second juror at her own request, when all knew that they were very likely the only two holdout jurors voting to acquit.

[73]      Although the trial judge’s individual decisions are discretionary and would be owed deference on appeal, the extensive inquiries into the jury’s deliberations and the discharge of the two jurors who appeared to be the ones in favour of acquittal resulted in a breach of the sanctity of the jury deliberation process, the appearance of unfairness, and ultimately, an unfair trial.

The court set aside the convictions and ordered a new trial.

Click here to read the case