Striking a Jury Notice is Not Easy > Principles Reviewed

Further to last week’s blog on this case, in a motion brought at Trial, the plaintiff sought to strike the jury in Laudon v. Roberts (2007 Ontario Superior Court) and have the Trial proceed with Judge alone.

The basis was that during cross-examination of the plaintiff’s Mother, defence counsel sought to introduce irrelevant information that the plaintiff had been accused of a robbery in British Columbia, in two separate questions.  This exchange took place in front of the Jury.  The alleged robbery had nothing to do with the case at hand, which was an action for personal injuries arising from a boating accident in Ontario.  The first question was disallowed by the Trial Judge and then was followed immediately by the defence counsel asking the same question in a different manner.

The Trial Judge gave an immediate direction to the jury to ignore those questions and answers.The plaintiff sought to strike the jury on the basis that the jury was tainted by this irrelevant information and would not be able to perform their duties impartially.

The test for striking a jury is reviewed.  In this case, the Trial Judge noted that early on in the Trial, the plaintiff’s counsel had ‘planted’ seed of credibility issues with the jury:

[21] On behalf of the plaintiff, it is submitted that the seed had been planted in the mind of the jurors that Mr. Laudon was an untrustworthy witness and a person of bad character as the result of the prejudicial references to his possible involvement in a robbery or armed robbery.  I agree with the defence position that if any seed was planted in the mind of the jury in respect of Mr. Laudon’s character and credibility, it was not planted by these references.  Rather, it was planted at the outset of trial by Mr. Laudon himself through his own counsel when Mr. Laudon’s pre-accident life experience was put to the jury “warts and all”.

[22] In so far as the law is concerned, it is clear that the right to a jury trial is both a statutory and a substantial right, which should not be interfered with absent just cause.  The onus is on the party moving to discharge a jury, and that onus is substantial.

An earlier related blog on striking a jury provides additional background on this issue.
Gregory Chang
Toronto Insurance Litigation Lawyer