A mistrial was declared for accused drunk driver Arthur Joe on Aug. 14, after three members of the jury pool were wrongly disqualified due to faulty criminal record check results. (Crystal Schick/Yukon News file)

UPDATED: Judge declares mistrial in impaired driving case

Duncan found that there were mistakes in the jury selection process

A mistrial has been declared for a Yukon man accused of drunk driving after three members of the jury pool were wrongly disqualified due to faulty criminal record check results.

Arthur Joe was set to stand trial this week on two counts of impaired driving as well as one count each of driving while disqualified and breaching probation.

Yukon Supreme Court Justice Suzanne Duncan, however, declared a mistrial the morning of Aug. 14, finding that a “problem in the jury selection process” had impacted Joe’s right to a fair, impartial and properly-representative jury panel.

Jury selection had taken place the morning of Aug. 13.

Joe’s lawyer, Vincent Larochelle, filed an application for a mistrial the same day over the wrongly-disqualified jurors, arguing that the mistake had deprived Joe of the right to have a properly-constituted jury panel.

Crown attorney Leo Lane conceded a mistrial was the best way to proceed under the circumstances.

In her decision, Duncan said that three people who had received summonses had been told by the sheriff’s office Aug. 12 that they had been disqualified from the jury panel.

However, they were actually eligible for jury duty and had been mistakenly identified as having criminal records during an RCMP check.

The “unintended error” was noticed only after the Crown and defence were provided with the jury list and raised questions about people who had been flagged as ineligible.

The RCMP re-did criminal record checks upon request, and at 9 p.m. on Aug. 12, told the sheriff’s office that three people had been wrongly put on the disqualified list.

The sheriff attempted to contact all three, Duncan said, but could only reach one, who was then dismissed for employment hardship reasons.

The other two could not be reached, and were not in court when their names were called during jury selection on Aug. 13.

At that point, there were still about five seats available on the jury.

While it’s impossible to know if either person would have ended up on the jury had they been in court, Duncan said that didn’t matter — what mattered was that there had been a flaw that impacted Joe’s right to have a properly-constituted jury panel and also impacted the appearance of the fairness of the process.

Duncan added that the error appeared to have happened because the jury list, which contained more than a hundred names, was given to the RCMP for criminal record checks at a “relatively late” stage — on Aug. 9, a Friday, with the trial scheduled to start the following Tuesday.

She said she hoped a “more timely approach” would be taken in the future.

Duncan largely dismissed a secondary argument raised by Joe’s lawyer suggesting that screening out people with criminal records was discriminatory.

Larochelle had argued that the practice of excluding people with criminal records from serving on juries unfairly impacts Indigenous people, who, due to systemic, historic and colonial reasons, are more likely than other people to have criminal records.

As a result, Indigenous people, as well as people of lower socio-economic status, are over-represented in almost every part of the criminal justice system except as jurors, he said.

That’s particularly relevant, Larochelle argued, because Joe is an Indigenous person with a criminal record, but, because of the policy, will see none of his “brothers and sisters” on what’s supposed to be a panel of his peers.

Duncan ruled that while accused people have a right to a properly-constituted jury panel, they do not have a right to a “jury of a certain constitution.”

She ultimately declared a mistrial and dismissed the jury.

Joe was released on bail following another hearing on Aug. 15, with a new trial scheduled to take place in February 2020.

Contact Jackie Hong at jackie.hong@yukon-news.com

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