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Criminal law – Jurors – Selection – What is the standard of review when it is alleged that a trial judge has erred in the exercise of his authority to supervise and control the jury selection process – Whether it is appropriate for a trial judge to conclude that when talesmen are sought, a sheriff has limited discretion to exclude potential jurors – Criminal Code, R.S.C. 1985, c. C-46, s. 629.

Mr. Blackduck’s trial on a charge of sexual assault was scheduled to begin on April 28, 2014. He elected trial by judge and jury. Jury selection proceeded and a number of people were excused on consent of the Crown and defence counsel. A number of others were excused for various reasons including relationships with the accused or witnesses involved in the case, the inability to understand English and personal hardship.

Six jurors were selected before the initial jury panel was exhausted. The Crown’s request for the summoning of talesmen was then granted and the Deputy Sheriff was directed to summons approximately 30 talesmen for jury selection. One of the selected jurors was subsequently excused on the basis of personal hardship as he had a funeral to attend in another community. This left five jurors remaining on the jury and eight jurors (including an alternate) yet to be selected.

The jury panel had assembled for the continuation of jury selection when defence counsel advised that he would be making an application challenging the jury panel pursuant to s. 629 of the Criminal Code. Defence counsel advised that he had spoken with the court interpreter and was concerned that the Deputy Sheriff had engaged in pre-screening by attending certain locations and by pre-screening talesmen for relationships with the accused, complainant and witnesses in the trial. Defence counsel alleged that the Deputy Sheriff was guilty of partiality in returning the panel of talesmen. The application was dismissed and jury selection continued.

On April 29, 2014 twenty five persons attended for jury selection; five were absent. A number of people were excused for various reasons. Four more jurors were selected before the additional panel was exhausted. At the end of jury selection, nine jurors had been selected. The Crown did not seek to have further talesmen summoned. As a full jury had not been selected, a mistrial was declared. A new trial date of January 19, 2015 was scheduled.