A judge in Owen Sound invoked a seldom-used section of the Criminal Code to try and assemble a makeshift jury for an upcoming criminal trial. Judge Leonard Ricchetti presiding over the trial ordered the sheriff to collect and summon prospective jurors at a local mall to ensure they have enough jurors to start the trial. Escorted by two police officers, Sheriff Stephen Olschewski and the court supervisor obtained a van and made their way to the local mall, whereby they started randomly selecting people to add to the pool of prospective jurors. About 12 shoppers were chosen and transported to the Owen Sound courthouse.
Edward Prutschi, a partner at the prestigious Bytensky Prutschi Shikhman criminal law firm and Canadian legal analyst, was an expert guest to discuss this peculiar case. Mr. Prutschi is first asked if this is a common practice amongst judges who are hard-pressed to find suitable jurors. Mr. Prutschi says that judges rarely invoke this section, and while he is familiar with the section in the Criminal Code, the only time he has heard about the section actually being invoked is from senior judges who recount having to utilize this section once or twice in their career when they were in a dire situation.
Mr. Prutschi is then asked about the quality of the jury pool, and whether they have to qualify or meet certain criteria. Mr. Prutschi says jurors do not necessarily have to meet some professional level or demonstrate certain personality traits, the makeup of the jury merely has to be representative of a larger social fabric who can, without bias, judge one of their peers. The interviewers ask Mr. Prutschi whether this is a case of the defense and Crown not agreeing on the prospective jurors. Mr. Prutschi answers that while he is not privy to the details of the case, the failure to trim-down from a 125 prospective juries to a group of 12 may potentially mean a few things.
On one front, it could mean that there was a “challenge for cause” which is when there is a request made that a prospective juror be dismissed because there is a reason to suspect racial bias.
Another reason Mr. Prutschi mentions is that there may have been peremptory challenges” where the defense or Crown rejects a juror candidate because they get an uneasy feeling towards a prospective juror, without having to specify the reasons for their dismissal. Mr. Prutschi mentions that while 125 prospective jurors seem like an awfully big number to choose 12 jurors from, when you consider all the challenges and reasons that exist for juror dismissal, 125 candidates is not an incredibly high number. Mr. Prutschi is then asked if having a jury comprised of your own racial makeup can result in favouritisms and a positive verdict in the accused’s case. Mr. Prutschi contends that while it is plausible, the point of jury process is not to design a jury that is composed of one racial minority or devoid of it, it’s to make sure that the accused has a reasonable shot of having a trial by an impartial and fair jury of their peers
Edward Prutschi is a media analyst who is regularly featured on the national media circuit to comment on legal issues, and is Toronto criminal lawyer and partner at Bytensky Prutschi Shikhman.