The jury .....

Good Day Readers:

The mainstream media has reported to date 2-jurors have been disqualified in the Mark Stobbe second degree murder trial currently underway. As part of our research we stumbled upon this site with the unlikely sounding name. As you will notice it has a series of videos (http://www.videojug.com/interview/jury-service-during-the-trial-2) informing the public about various aspects of jury duty. While it's based on the American experience there is much similarity between the two systems.

Under recent changes to Canada's Criminal Code provision has been made for so-called "mega trials" where 14 jurors instead of the usual 12 are selected in cases expected to be long and complex. A criminal trial cannot proceed with less than 10 jurors. In Stobbe, for example, the Crown will call 76 witnesses. It is not known by the prosecution whether the Defence will introduce any - it will only find out if and when they're called. The Defence is not required to advise the Crown in advance of introducing a witness(es).

In the case of the juror recently disqualified because of sleep apnea, we indeed found examples from United States jurisprudence where mistrials have been declared due of jurors sleeping, or otherwise not focusing/paying attention. We have not researched the Canadian experience.

The Jury Act of Manitoba (53 multiple clause paragraphs) lists 17 grounds (Paragraph 3) for which an individual can be disqualified during the pre-selection phase. It is silent, however, about reasons a juror can be disqualified once a trial is underway - bear in mind we are not lawyers but our reading of The Act uncovered nothing. Presumably the reasons are potentially so diverse all could not be adequately be covered in a piece of legislation.

Further, not being among the potential jury pool summoned to The Law Courts, we do not know whether it was a "challenge for cause" something which would have been decided at a Pre-Trial Conference not open to the public. It is our understanding in Manitoba either side can file a Motion which if successful allows both counsel to ask each potential juror 3-questions one of which can include a question allowing lawyers to judge a person's fitness for duty. If done, would the now former juror with  the sleep disorder have been disqualified prior to trial?    

We hope there will be no further disqualifications as a mistrial would not be in the public interest..

Sincerely,
Clare L. Pieuk

Postscript
Ms Jones in the video talks about "the power to nullify." Based on our reading for whatever reason(s) it appears to be a subject not widely discussed among Canadian legal scholars. Not so in the United States where it's easy to find examples of jury nullification usually attributable to layperson jurors with little, if any, appreciation of criminal (and civil) law failing to interpret or viewing jurisprudence as lawyers and judges would.

In Manitoba a lawyer cannot sit as a juror. A solicitor retired and no longer practicing? That's a grey area  yet to be tested.