Wednesday, January 25, 2012

Manitoba courts have too much class to talesmen!

Dear Ms Sims:

We were particularly interested in your article because we spend a lot of time at Winnipeg's Provincial Law Courts - currently covering three high profile murder trials - plus grew up in London, Ontario.

A special thank you to a couple Law Courts staff who generously gave of their time today to explain the process here. Yes, it has happened twice before, however, with a significant difference. Sheriffs were sent out with specific instructions and a list of questions to ask those citizens targeted at random such as, "Do you have a business trip or vacation imminent? Is there a family emergency or illness that requires much of your time and attention?" etc. Only those least inconvenienced are selected.

BTW, a judge saw your article and requested clarification from staff of the process used in Manitoba.

Clare L. Pieuk
Jury corral empty, posse hits the trail
Court: Little-used section of Criminal Code dusted off as panel comes up on one short

By Jane Sims
Wednesday, January 2012
A jury seat was still empty, but there was no one left to choose from.

The solution?

Send out the sheriff to round up potential jurors off the street.

Like something out of the Wild West, the rare move happened in London after a court ran out of people -- more than 130 had been vetted -- to hear the case against three men charged with assault, threats and forcible confinement.

Relying on a little-used part of the Criminal Code, Justice Kelly Gorman ordered the Middlesex County Sheriff and London police to wrangle up the first 20 people they found in the area of the courthouse and order them to appear in court the next day to be considered for the jury.

Tuesday, those 20 lassoed the previous afternoon waited anxiously to find out if they'd be hearing a week-long trial.

But here's the kicker -- in the end, they weren't needed at all.

The term for people dragooned for jury duty is "talesmen," meaning "reserve member of a jury" from the old English word "tales," or "writ ordering bystanders to serve." Not that the London people hauled in were aware of that old tradition or term.

Instead, they waited to find out if they'd be chosen to hear the trial of Irtiza Hussain, 38, Andrew Singh, 35 and Randy Singh, 37.

No one around the courthouse could clearly remember the last time such a move to find a juror was taken.
The three men faced three charges of assault, forcible confinement and threats to another man, Abbas Mahdiyan on April 4, 2009.

Randy Singh also faced gun-related counts stemming from the same incident.

This was the third attempt to get the case off the ground. In October, it was adjourned after two other juries were chosen from a pool for other cases, leaving too few people left to choose from for the trial.

The case was rescheduled for December, but again had to be adjourned when one defence lawyer had another jury trial go longer than expected, leaving him unavailable.

The defence lawyers -- Brian Chambers, Ken McMillan and Craig McLean -- also wanted a jury selection process involving a so-called "challenge for cause," where each potential juror is asked a question to judge their fitness for duty.

McLean asked potential jurors if their ability to judge the case without bias, prejudice or partiality would be affected by the fact the accused persons were black.

Some potential jurors couldn't serve because of health issues or personal circumstances.
Each of the three defence lawyers was allowed to "challenge" 12 people -- effectively, rejecting them for the jury.

The Crown was given an equal 36 challenges -- and assistant Crown attorney John Hanbidge used them sparingly.

By the end of Monday, there was no one left to pick.

That's when Gorman called in the sheriff and police.

Tuesday morning, the process started again.

The first two potential jurors told Gorman they worked at the nearby federal building at Queens Avenue and Talbot Street.

Gorman explained the court's predicament and why they've been pulled into service so abruptly.

"I'm sure this was quite a shock," she said to the first woman to be questioned.
"It was," she said.

Both women were rejected, but the third potential juror, a bank employee, was accepted.

By late morning, the rest of the corralled jury was summoned into the courtroom. Gorman thanked them and told them of her order to have the police and sheriff "wrangle up members of the public" on short notice.
They were allowed to leave.

Finally, a jury of five women and seven men was ready. They were sent out of the courtroom to allow some legal discussions, and the trial would begin.

But not so fast.

The short recess ran into the lunch hour. After lunch, there were more discussions.

The jury was sent home.

Shortly before 3 p.m., the three men pleaded guilty to the three main charges, while Randy Singh also pleaded guilty to two charges involving an imitation handgun. They're to be sentenced January 25.

The jury, after a very long day, was to have received phone calls informing them their services weren't needed.

Criminal Code of Canada Section 642
(1) If a full jury and any alternate jurors considered advisable cannot be ­provided . . . the court may, at the request of the prosecutor, order the sheriff or other proper officer to summon without delay as many persons, whether qualified jurors or not, as the court directs for the purpose of providing a full jury and alternate jurors . . .
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