R. v. Martin (G.W.), (2013) 409 N.B.R.(2d) 45 (TD)

• Judge: Morrison, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: July 05, 2013
• Jurisdiction: New Brunswick
• Citations: (2013), 409 N.B.R.(2d) 45 (TD);2013 NBQB 321

R. v. Martin (G.W.) (2013), 409 N.B.R.(2d) 45 (TD);

    409 R.N.-B.(2e) 45; 1062 A.P.R. 45

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] N.B.R.(2d) TBEd. OC.047

Renvoi temp.: [2013] N.B.R.(2d) TBEd. OC.047

George W. Martin v. Her Majesty the Queen

(N/CR/11/07; 2013 NBQB 321; 2013 NBBR 321)

Indexed As: R. v. Martin (G.W.)

Répertorié: R. v. Martin (G.W.)

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Miramichi

Morrison, J.

July 9, 2013.

Summary:

Résumé:

The accused was convicted by a jury of obstruction of justice. Some days after the verdict and discharge of the jury, the accused and his counsel were advised that while the jury was in deliberations one of the jurors was permitted to leave the jury room and the courthouse building, where he was alleged to have made telephone calls on his cell phone. It was also alleged that some members of the jury remained in the jury room while others were outside during this same period. The accused brought a motion requesting that the court conduct an inquiry into the events to determine whether there had been a miscarriage of justice, and if so, that it declare a mistrial on the grounds that the accused was denied the right to a fair and impartial trial.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the accused's motion for a mistrial where it lacked jurisdiction. The court would proceed with an inquiry into both aspects of the alleged juror conduct that would not offend the jury secrecy rule.

Criminal Law - Topic 4306.1

Procedure - Jury - General - Disclosure of jury proceedings - The accused was convicted by a jury of obstruction of justice - Some days after the verdict and discharge of the jury, the accused and his counsel were advised that while the jury was in deliberations one of the jurors was permitted to leave the jury room and the courthouse building, where he was alleged to have made telephone calls on his cell phone - It was also alleged that some members of the jury remained in the jury room while others were outside during this same period - The accused brought a motion requesting that the court conduct an inquiry into the events to determine whether there had been a miscarriage of justice - The New Brunswick Court of Queen's Bench, Trial Division, held that it had jurisdiction to conduct a post-discharge inquiry and had no hesitation in exercising that jurisdiction in favour of an inquiry here - The court would proceed with an inquiry into both aspects of the alleged juror conduct that would not offend the jury secrecy rule - See paragraphs 13 to 26.

Criminal Law - Topic 4324

Procedure - Jury - General - Discharge of jury - [See Criminal Law - Topic 4306.1 ].

Criminal Law - Topic 4640

Procedure - Mistrials - Jury trial - Jurisdiction of judge to grant - The accused was convicted by a jury of obstruction of justice - Some days after the verdict and discharge of the jury, the accused and his counsel were advised that while the jury was in deliberations one of the jurors was permitted to leave the jury room and the courthouse building, where he was alleged to have made telephone calls on his cell phone - It was also alleged that some members of the jury remained in the jury room while others were outside during this same period - The accused brought a motion requesting that the court conduct an inquiry into the events to determine whether there had been a miscarriage of justice, and if so, that it declare a mistrial on the grounds that the accused was denied the right to a fair and impartial trial - The New Brunswick Court of Queen's Bench, Trial Division, dismissed the accused's motion for a mistrial - The circumstances of this case did not fall within the limited exception created by R. v. Burke (H.P.) (SCC 2002) - In the present case, the jury delivered the intended verdict and there was no indication that the verdict was recorded in error or there was any other administrative error - Accordingly, the court had no jurisdiction to grant the motion for a mistrial - See paragraphs 5 to 12.

Droit criminel - Cote 4306.1

Procédure - Jury - Généralités - Divulgation des délibérations d'un jury - [Voir Criminal Law - Topic 4306.1 ].

Droit criminel - Cote 4324

Procédure - Jury - Généralités - Libération du jury - [Voir Criminal Law - Topic 4324 ].

Droit criminel - Cote 4640

Procédure - Nullité du procès - Procès devant jury - Compétence du tribunal de prononcer la nullité - [Voir Criminal Law - Topic 4640 ].

Cases Noticed:

R. v. Head, [1986] 2 S.C.R. 684; 70 N.R. 364, refd to. [para. 5].

R. v. Burke (H.P.), [2002] 2 S.C.R. 857; 290 N.R. 71; 160 O.A.C. 271; 2002 SCC 55, refd to. [para. 7].

R. v. Malicia (A.) (2006), 216 O.A.C. 252 (C.A.), refd to. [para. 9].

R. v. Ermine (T.) (2010), 350 Sask.R. 176; 487 W.A.C. 176 (C.A.), refd to. [para. 9].

R. v. Bains (L.) et al., [2013] O.T.C. Uned. 950; 2013 ONSC 950, refd to. [para. 12].

R. v. Cassidy (C.A.) (2006), 300 N.B.R.(2d) 180; 782 A.P.R. 180 (T.D.), refd to. [para. 15].

R. v. Pan (R.W.); R. v. Sawyer (B.), [2001] 2 S.C.R. 344; 270 N.R. 317; 147 O.A.C. 1; 2001 SCC 42, refd to. [para. 19].

R. v. Frebold (W.A.) (2001), 151 B.C.A.C. 1; 249 W.A.C. 1; 2001 BCCA 205, refd to. [para. 24].

Counsel:

Avocats:

Michel Bertrand, for the Crown;

Ronald E. Morris, Q.C., and Daniel R. Jardine, for George W. Martin.

This motion was heard on July 5, 2013, by Morrison, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Miramichi, who delivered the following decision on July 9, 2013.