R. v. Gargan (C.), (2010) 493 A.R. 244 (CA)

• Judge: Watson, Cooper and Bielby, JJ.A.
• Court: Court of Appeal (Northwest Territories)
• Case Date: October 19, 2010
• Jurisdiction: Northwest Territories
• Citations: (2010), 493 A.R. 244 (CA)

R. v. Gargan (C.) (2010), 493 A.R. 244 (CA);

      502 W.A.C. 244

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. NO.037

Her Majesty the Queen (respondent) v. Christopher Gargan (appellant)

(A-1-AP-2009-000002; 2010 NWTCA 11)

Indexed As: R. v. Gargan (C.)

Northwest Territories Court of Appeal

Watson, Cooper and Bielby, JJ.A.

October 29, 2010.

Summary:

The accused was convicted by an 11 person jury of sexual assault and sentenced to four years' imprisonment. He appealed the conviction. He was currently without counsel or funds to retain counsel. He requested that the court  appoint counsel for him.

The Northwest Territories Court of Appeal, in a decision reported at [2010] A.R. Uned. 196, ordered that counsel be appointed at this time for the limited purpose of reviewing the matter and reporting to the court as to whether there was a viable grounds of appeal. The appeal proceeded. The accused challenged the jury selection process.

The Northwest Territories Court of Appeal allowed the appeal, set aside the conviction and ordered a new trial. The trial judge erred in discharging a juror and failing to take steps to seek a substitute for her. As a result, the accused was effectively deprived of a jury of twelve persons which was his right under law.

Criminal Law - Topic 4305

Procedure - Jury - General - The Northwest Territories Court of Appeal discussed the history of a 12 person jury - See paragraphs 4 to 6.

Criminal Law - Topic 4305.1

Procedure - Jury - Placing accused in charge of the jury - Twelve jurors were selected and sworn for the accused's sexual assault trial - The trial judge had the clerk put the accused in charge of the jury - The trial judge instructed the jury to come back after lunch when the trial would start - One juror showed up about an hour late - The judge obtained an explanation and discharged the juror apparently because she was highly upset and could not carry out her duties - The trial proceeded and the accused was convicted by the 11 person jury - The Northwest Territories Court of Appeal allowed the accused's appeal and ordered a new trial - The trial commenced when the accused was put in charge of the jury - It was not necessary for the Crown to have opened its case or called a witness for that to be said to have happened - The process directed by the trial judge here was sufficient to constitute putting the accused in charge of the jury - That was because the trial judge, being the judicial and legal authority contemplated by the Criminal Code as competent to try the case with the jury, had formally, and in open court, engaged the jury in its role as part of the court with him to try the accused - The trial judge and the jury had merged into the court with Constitutional competence to try the case - As part of this process of putting in charge, the judge also explained to the jury that they were now to commence the trial of the accused as per their oath - The fact that the trial judge spoke through a clerk in formally establishing the court for this shared responsibility did not change anything - See paragraphs 13 to 20.

Criminal Law - Topic 4318

Procedure - Jury - Judge's discretion to excuse or exempt juror - [See Criminal Law - Topic 4325 ].

Criminal Law - Topic 4325

Procedure - Jury - Discharge of juror - Twelve jurors were selected and sworn for the accused's sexual assault trial - The trial judge had the clerk put the accused in charge of the jury - The trial judge instructed the jury to come back after lunch where the trial would start - One juror showed up about an hour late - The judge obtained an explanation and discharged the juror apparently because she was highly upset and could not carry out her duties - The trial proceeded and the accused was convicted by the 11 person jury - The Northwest Territories Court of Appeal allowed the accused's appeal and ordered a new trial - Under s. 644(1) of the Criminal Code, the juror could only be lawfully discharged if the basis for doing so existed and the Code contemplated process was followed - The trial judge should have sought and obtained the position of counsel for the parties before his decision to discharge the juror - The reasons given for discharge of the juror did not completely address the test in s. 644(1) - A trial judge had to be satisfied that the juror could not "continue" due to "illness or other reasonable cause" - The trial judge also failed to take steps to seek a substitute for the juror (i.e., recall members of the initial jury panel or seek a talisman) - The effect of these errors was to effectively deprive the accused of the jury of twelve persons which was his right under law - The error of law constituted a jurisdictional defect in the proceedings that could not be cured by application of s. 686(1)(b)(iv) or any other curative proviso - See paragraphs 21 to 28.

Criminal Law - Topic 4325.1

Procedure - Jury - Discharge of juror - Proceeding with reduced number of jurors - [See Criminal Law - Topic 4325 ].

Criminal Law - Topic 5038

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Procedural error - [See Criminal Law - Topic 4325 ].

Cases Noticed:

R. v. Emile (1988), 42 C.C.C.(3d) 408; 65 C.R.(3d) 135 (N.W.T.C.A.), refd to. [para. 4].

Bushell's Case (1670), Vaugh. 135; 124 E.R. 1006 (C.P.), refd to. [para. 6].

Patton v. United States of America (1930), 281 U.S. 276; 50 S. Ct. 253 (Sup. Ct.), refd to. [para. 6].

R. v. Wu, [1999] HCA 52; 199 C.L.R. 99, refd to. [para. 6].

R. v. Basarabas; R. v. Spek, [1982] 2 S.C.R. 730; 46 N.R. 69; 2 C.C.C.(3d) 257, refd to. [para. 13].

R. v. Piche (R.F.) (1997), 86 B.C.A.C. 188; 142 W.A.C. 188; 113 C.C.C.(3d) 149 (C.A.), refd to. [para. 16].

R. v. Plato (1985), 60 A.R. 73; 40 Alta. L.R.(2d) 200 (C.A.), refd to. [para. 16].

R. v. L.K.W. (1999), 126 O.A.C. 39; 138 C.C.C.(3d) 449 (C.A.), leave to appeal refused (2000), 264 N.R. 393; 145 O.A.C. 398 (S.C.C.), refd to. [para. 16].

R. v. R.J.S. (1996), 154 N.S.R.(2d) 118; 452 A.P.R. 118; 110 C.C.C.(3d) 535 (C.A.), leave to appeal refused (1997), 227 N.R. 286; 169 N.S.R.(2d) 151; 508 A.P.R. 151 (S.C.C.), refd to. [para. 16].

R. v. Lunden (R.O.) (1998), 244 A.R. 346; 209 W.A.C. 346; 1998 ABCA 398, refd to. [para. 17].

R. v. Nest (J.D.) (1999), 228 A.R. 369; 188 W.A.C. 369; 1999 ABCA 46, refd to. [para. 18].

R. v. Cruickshank (R.K.) (2002), 312 A.R. 187; 281 W.A.C. 187; 2002 ABCA 168, refd to. [para. 18].

R. v. L.H.S. (1999), 122 B.C.A.C. 300; 200 W.A.C. 300; 1999 BCCA 307, refd to. [para. 19].

R. v. Hazlett (M.) (2005), 205 O.A.C. 298 (C.A.), refd to. [para. 19].

R. v. Belliveau (L.J.P.) (2005), 212 B.C.A.C. 279; 350 W.A.C. 279; 197 C.C.C.(3d) 307; 2005 BCCA 283, refd to. [para. 23].

R. v. Fontaine (D.) (2002), 166 Man.R.(2d) 214; 278 W.A.C. 214; 168 C.C.C.(3d) 263; 2002 MBCA 107, refd to. [para. 24].

R. v. Wucherer (P.J.) (2005), 215 B.C.A.C. 83; 355 W.A.C. 83; 199 C.C.C.(3d) 61; 2005 BCCA 390, refd to. [para. 24].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 644(1) [para. 13].

Authors and Works Noticed:

Blackstone, William, Commentaries on the Laws of England (1902), Book 4, p. 1735 [para. 6].

Devlin, Patrick, Trial by Jury (1956), p. 164 [para. 6].

Holdsworth, William Searle, A History of English Law (5th Ed. 1942), vol. 1, pp. 312 to 350 [para. 6].

Counsel:

S. Smallwood, for the respondent;

Christopher Gargan, the appellant, appeared in person.

This appeal was heard on October 19, 2010, by Watson, Cooper and Bielby, JJ.A., of the Northwest Territories Court of Appeal. The following memorandum of judgment of the court was filed at Yellowknife, N.W.T., on October 29, 2010.