Jury Gate: Canadian Hockey Players Now Tried by Judge Alone
Jury Gate: Canadian Hockey Players Now Tried by Judge Alone
It was reported today that jury in the trial of the five Canadian Junior hockey players (Alex Formenton, Dillon Dube, Cal Foote, Michael McLeod and Carter Hart) was discharged and that the trial would continue by judge alone.
What triggered the issue was a note passed along to the judge by one of the jurors accusing Alex Forementon’s lawyers – Daniel Brown and Hilary Dudding (the same lawyers at the centre of an earlier mistrial) – of unacceptable and unprofessional conduct. As reported by the CBC, Toronto Star and other news outlets, the note read:
“Every day when we enter the courtroom they [Dudding and Brown) observe us, whisper to each other, and turn to each other and laugh as if they are discussing our appearance. This is unprofessional and unacceptable.”
Not surprisingly, the lawyers denied the allegations. Superior Court Justice Maria Carroccia indicated on the record that she did not make any such observations from her seat on the bench.
It is noteworthy that the design of the Courtroom permits the judge a birds-eye view of the entire Courtroom, including the jury and counsel table. It is also worth recognizing that just because the judge didn’t make the observation, doesn’t mean nothing happened. However, what is striking is that the trial has hitherto proceeded for about 4 weeks; meaning that there has been in the neighborhood of at least 15-20 chances for the trial judge to observe the alleged conduct by the defence lawyers. If the Courtroom in London, Ontario is anything like a courtroom in the Calgary Court Centre, the parties could have also checked camera footage which records court proceedings.
The purpose of this post is not to debate the credibility, reliability or sensitivity of the jurors; rather, this Calgary criminal lawyer is interested in the legal authority of the Court to force the trial to completion by judge alone.
LEGAL AUTHORITY TO CONTINUE THE TRIAL BY JUDGE ALONE
What I take from reviewing the various news reports is that Justice Carroccia was concerned with the jury’s ability to impartially decide the case. In her words:
“My concern is that there is a possibility that several members of the jury harbour negative feelings about certain counsel that could potentially impact upon their ability to fairly decide this case”.
Section 644(1) of the Criminal Code of Canada authorizes a judge to discharge a juror when “… the judge is satisfied that a juror should not, by reason of illness or other reasonable cause, continue to act…”.
Now, there is some flexibility in a criminal trial to accommodate a reduction in the number of jurors empanelled to hear the case.
Applying section 644(2) of the Criminal Code a jury remains properly constituted as long as the number of jurors is not reduced below 10. In other words, in the case of the Junior Hockey Players, it might have been possible to discharge the impacted jurors and if the number of jurors did not fall below 10, to continue with the trial by judge and jury.
When the number of jurors falls below 10, section 644(3) of the Criminal Code is triggered. This section reads: “if in the course of a trial the number of jurors is reduced below 10, the judge may, with the consent of the parties, discharge the jurors, continue that trial without a jury and render a verdict”.
DECISION TO DISCHARGE THE JURY
It appears that Justice Carroccia was concerned that the several members of the jury may have been prejudiced by the perceived conduct of Formenton’s defence lawyers.
“My concern is that there is a possibility that several members of the jury harbour negative feelings about certain counsel that could potentially impact upon their ability to fairly decide this case”.
The justice’s language is important; for she reasonably concluded that it was possible for “several” jurors being tainted. Since the jury was 12 members, the word “several” logically means that the panel was reduced to an undefined number less than 10. This reduction engaged s. 644(3) of the Code.
If I am correct that this was the legal paradigm followed, there were only two options: a second mistrial (and to start the trial again) or for all parties to consent and to continue the trial by judge alone.
THE WISDOM OF CONSENT
From reading the news reports relating to the trial to date, it does not surprise this Calgary defence lawyer that all parties would have consented to leaving it to Justice Carroccia to decide the case.
From the Prosecutor’s perspective, a second trial would mean all of the witnesses, including the complainant, would very likely have to return to testify a second time. The defence would now be armed with an additional battery of statements upon which they could cross-examine. The complainant would likely be subject to a greater hardship; for she would not only, for a second time, be cross-examined by up to five defence lawyers, but would be exposed to a much higher risk of being impeached for making prior inconsistent statements. This is so because the defence would now not only have the original evidence provided by way of disclosure but would at a second trialbe armed with testimony from the first trial In my opinion, the Prosecutor’s case is much more likely to weaken over time and therefore, continuing the trial by judge alone appears have been a wise choice.
Assessing the case from reading the media reports, it appears the Prosecutions case is already in considerable peril. Please understand, I only offer this thought from reading the media’s reporting of the trial. I am cognizant that there is almost assuredly much more evidence than what has been reported to date. However, conservatively speaking, it appears the Crown has challenges and on the balance of probabilities, those challenges are likely to worsen, not improve for a second trial.
I can also undersand why the defence consented to continue the trial by judge alone. To that end, it appears from reading the media reporting that the accused have a very reasonable likelihood of raising reasonable doubt and being found “not guilty”. Many judges are highly trained litigation professionals who have a strong understanding of the burden of proof in criminal trials. Generally speaking, but not always, I have a more confidence in a judge’s ability to apply the principles of reasonable doubt than a jury. Therefore, trial by judge alone at this stage appears to be a prudent defence decision.
It is worth noting that like the complainant and other witnesses, the accused also likely do not wish to endure the stress of a second trial. The accused also have financial concerns. A second trial would mean having to hire lawyers to do the case a second time – potentially doubling legal fees (which are almost assuredly considerable).
CONCLUSION
The lesson from what has transpired in this case is that all of us looking from the outside-in, should reserve judgment until the conclusion of the case. Furthermore, I suspect that many members of the public are decrying the defence on grounds that at least a couple of lawyers have been involved in some alleged questionable brinkmanship.
To be sure, if the defence lawyers involved did improperly interact the jury, that would be unfortunate. Such behavour could potentially subject those lawyers to a complaint lodged with their professional body. However, I agree with Mr. Brown (co-counsel for Mr. Formenton) that it was not in the defence interest to alienate jurors in this case. In his words:
"No defence counsel would risk alienating a juror, and nothing could be further from the truth in this instance," the statement said. "The very idea of counsel making light of a juror is illogical and runs directly counter to our purpose and function."
https://www.chroniclejournal.com/news/national/hockey-players-sex-assault-trial-to-continue-with-judge-alone-after-jury-dismissed/article_6cb6205f-527f-556f-bb48-b34ff514942e.html
In short, if anybody thinks that the defence gameplan was to trigger a jury note that would trigger a mistrial, this Calgary criminal lawyer is highly sceptical. In my view, not even the best criminal defence lawyers could have predicted the events as they unfolded. Also, why would a competent defence lawyer ever risk a jury convicting its client for nothing more than a cheap laugh?
I have observed that many Canadians have already pre-judged this case (one-way or another). In my view, while we are all interested, it is not in the best interest of the criminal justice system or even our communities to prematurely judge any of the parties in this case.
Let the evidence speak for itself. Let the judge decide.
These are my thoughts, not yours.
David Chow
David Chow is a criminal defence lawyer in Alberta. This blog is nothing more than his thoughts and opinions about social issues and issues in criminal law. Canadian Junior Hockey Players | Jury Discharged | Trial by Judge Alone.