Accused was convicted of fraud following a jury trial. During the fourth day of the jury deliberations, a juror fell ill with a stomach ailment and was taken to hospital. Given the uncertainty of the juror’s status, the trial judge discharged her.
Held: Appeal dismissed.
“Discharging a juror in emergency circumstances is authorized by s. 644 (1) CC and is highly discretionary: R v Li, 2012 ONCA 291. While consulting with counsel would have been desirable, the judge was faced with the prospect of interrupting deliberations, with a sequestered jury, which had already gone on for four days, while trying to determine if the juror could ever return. The Criminal Code contemplates a jury of 10; there is no absolute right to be tried by 12 jurors.”
S. Kothari, C. Wilson –