



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kossyrine, 2017 ONCA 388

DATE: 20170515

DOCKET: C58017

Laskin, Watt and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dmitri Kossyrine

Appellant

Vincenzo Rondinelli, for the appellant

Michael Bernstein, for the respondent

Heard: April 10, 2017

On appeal from the conviction entered by Justice Eugene
    G. Ewaschuk of the Superior Court of Justice, sitting with a jury, on November 15,
    2012.

Laskin J.A.:

A.

Introduction

[1]

Glen Davis was a successful businessman and a passionate
    conservationist, who gave generously to the World Wildlife Fund and other
    environmental causes. In May 2007, Davis was murdered  shot and killed in an
    underground parking garage in Toronto. Davis nephew, Marshall Ross,
    orchestrated the murder. Rosss friend, the appellant Dimitri Kossyrine, acted
    as the middle man, and hired a close friend of his, Eugene Vorobiov, to carry
    out the killing.

[2]

Ross pleaded guilty to first degree murder. Vorobiov was separately
    tried and convicted of first degree murder. Kossyrine, too, was charged with
    first degree murder. In November 2012, after a six week trial before a judge
    and jury, he was found guilty and sentenced to life imprisonment.

[3]

Kossyrine raises two grounds of appeal. Both concern the composition of
    the jury. First, he argues that the jury was improperly constituted because the
    trial judge used
static triers
to
    decide the challenges for cause. Second, he argues that the trial judge erred
    by discharging one juror  juror 11  without reasonable cause. On either
    ground Kossyrine asks that his conviction for first degree murder be set aside
    and a new trial ordered.

[4]

For the reasons that follow, I would not give effect to either ground of
    appeal. I would therefore dismiss Kossyrines appeal.

B.

Brief
    Background

(1)

The
    unsuccessful and successful attempts on Daviss life

[5]

Ross and Davis were close. Over the years, Davis loaned about $2 million
    to Rosss construction company. But Ross business did poorly and he did not
    repay any of the loans. He mistakenly believed that he would inherit his
    uncles fortune, and decided to kill him to speed up receipt of his
    inheritance.

[6]

Rosss first attempt was unsuccessful. In 2005, Ross asked Kossyrine to
    recruit someone to kill Davis. Kossyrine hired a man named Cawley, whom he knew
    from work, and paid him $46,000 in cash to murder Davis. Cawley enlisted a
    cousin to carry out the murder. The cousin used a baseball bat instead of a gun
    and tried to beat Davis to death. During the attack, nearby construction workers
    heard Daviss cries for help and intervened. Cawley and his cousin fled without
    being identified. Daviss arm was broken in the beating and 100 stitches were needed
    to sew up his head.

[7]

After this unsuccessful attempt on Daviss life, the financial condition
    of Rosss construction company continued to deteriorate. In mid-May 2007, two
    days before the murder, Ross met with Davis and Davis agreed to loan Rosss company
    more money; another $350,000. Davis, however, told Ross he wanted all of his $2
    million in loans repaid. After this meeting Kossyrine recruited Vorobiov to
    kill Davis, and Vorobiov succeeded in doing so.

[8]

The beating and murder of Davis were unsolved for several years. However,
    in 2008, Cawley came forward and told the police about the beating and his
    involvement. After a further police investigation Ross, Vorobiov and Kossyrine
    were charged with first degree murder. Ross pleaded guilty, and Vorobiov was
    separately tried and convicted.

(2)

The Crowns
    case against Kossyrine

[9]

The Crown mounted a powerful case against Kossyrine. The Crowns
    evidence included the following:

·

the
    evidence of Cawley and another man named Smith. Smith was the getaway driver
    for Vorobiov, and pleaded guilty to being an accessory after the fact for
    helping Vorobiov flee the scene of the murder;

·

evidence
    of the close business and personal relationship between Ross and Kossyrine;

·

phone
    records;

·

wiretap
    intercepts of incriminating conversations between Ross and Kossyrine; and

·

evidence
    of Kossyrines conduct after the murder, which included his lies to the police
    and his giving Vorobiov $10,000 to flee Canada for Ukraine.

[10]

Kossyrine did not testify. His counsel argued that his client had no
    connection to the murder and the Crowns witnesses had lied in their testimony.
    The jury found Kossyrine guilty of first degree murder.

C.

The issues on appeal

(1)

Was the jury improperly
    constituted because the trial judge used s
tatic
    triers
to decide the challenges for cause?

(a)

Rotating
    and
static triers
to decide
    challenges for cause

[11]

Daviss murder generated a great deal of publicity before Kossyrines
    trial. This publicity raised a concern about the impartiality of prospective
    jurors. Both the Crown and the defence asked to challenge prospective jurors
    for cause based on pre-trial publicity. The trial judge agreed that they could
    do so.

[12]

Before 2008, challenges for cause to assess the impartiality of prospective
    jurors in a criminal trial were decided by rotating triers. The two last
    jurors sworn  or if no juror had been sworn, two persons appointed by the
    court  decided whether the next prospective juror was impartial.

[13]

In 2008, Parliament amended s. 640(2) of the
Criminal Code
, R.S.C. 1985, c. C-46
to provide for a
    second method of deciding challenges for cause  by
static

triers
.
    Under this amendment, two t
riers

appointed by the trial judge decide all challenges for cause. Unlike rotating
    triers,
static triers
do not
    become members of the jury that decides the case.

[14]

Subsections 640(2), (2.1) and (2.2) of the
Code
now provide:

(2) If the ground of a challenge is one that is not mentioned
    is subsection (1) and no order has been made under subsection (2.1), the two
    jurors who were last sworn  or, if no jurors have been sworn, two persons
    present who are appointed by the court for the purpose  shall be sworn to
    determine whether the ground of challenge is true.

(2.1) If the challenge is for cause and if the ground of the
    challenge is one that is not mentioned in subsection (1), on the application of
    the accused, the court may order the exclusion of all jurors  sworn and
    unsworn  from the court room until it is determined whether the ground of
    challenge is true, if the court is of the opinion that such an order is
    necessary to preserve the impartiality of the jurors.

(2.2) If an order is made under subsection (2.1), two unsworn
    jurors, who are then exempt from the order, or two persons present who are
    appointed by the court for that purpose, shall be sworn to determine whether
    the ground of challenge is true. Those persons so appointed shall exercise
    their duties until 12 jurors  or 13 or 14 jurors, as the case may be, if the
    judge makes an order under subsection 631(2.2)  and any alternate jurors are
    sworn.

[15]

Subsection 640(2) provides for rotating triers. Subsections 640(2.1) and
    (2.2) provide for
static triers.
The advantages and disadvantages of each method have been extensively discussed
    in
R. v. Noureddine
,
2015 ONCA 770, 128 O.R. (3d) 23, and
R. v. Grant
, 2016
ONCA 639, 342 C.C.C. (3d) 514.
    That discussion need not be repeated here.

[16]

The accused may choose which method to use. An accused who wants s
tatic triers
makes an application for an
    order under s. 640(2.1) to exclude all jurors from the courtroom during the
    challenges for cause. If the trial judge makes the order, the trial judge then
    appoints s
tatic triers
under s.
    640(2.2). If the accused does not ask for
static
    triers
,
rotating triers
are used. Recently in
Grant
, decided after the trial in this case, our
    court resolved a debate among trial judges and held that, even with rotating
    triers, a trial judge has discretion to exclude unsworn jurors from the courtroom
    during challenges for cause.

(b)

This
    case

[17]

Kossyrine did not make a formal application under s. 640(2.1) of the
Code
to exclude all jurors from the courtroom, and he did not specifically request
static triers
. He submits that the trial
    judges use of
static triers
to
    decide the challenges for cause resulted in an improperly constituted jury, and
    his conviction must therefore be quashed. The Crown submits that to give effect
    to Kossyrines position would elevate form over substance. Kossyrine wanted static
    triers, and in substance must be taken to have made an application under s.
    640(2.1). I agree with the Crowns submission.

[18]

The trial judge in this case was also the trial judge in
Noureddine
and
Grant
, and he had a strong
    preference for using static triers, which he viewed as more efficient. After
    agreeing to allow challenges for cause based on the effect of pre-trial
    publicity on the impartiality of the jurors, he told counsel he intended to use
    s
tatic triers
.

[19]

Defence counsel did not object to the use of s
tatic triers
or raise the possibility of
    using
rotating triers
. Indeed,
    it is evident from the dialogue between the trial judge and counsel that,
    because of the concern about pre-trial publicity, both the Crown and the
    defence wanted all the prospective jurors out of the courtroom during the
    challenges for cause. Excluding the prospective jurors and using static triers avoided
    the possibility that a jurors attitude could be tainted by an answer given by another
    prospective juror.

[20]

Defence counsels concern was that the static triers be properly vetted.
    The trial judge took defence counsels concern into account. He explained that
    he would vet each proposed static trier and give defence counsel a chance to
    object to any person chosen. The trial judge added, [y]eah, usually Ill
    accede to your opposition.

[21]

Defence counsel expressed satisfaction with the trial judges proposed
    approach. He said, [a]ll right. Sounds like itll work and later, [i]n
    principle it seems like it would work. The trial judge then identified two static
    triers and, after vetting them, found that they were suitable. Both Crown and
    defence counsel also approved them to decide the challenges for cause.

(c)

Analysis

[22]

Now in this court Kossyrine contends that because he did not make a
    formal application under s. 640(2.1), and did not expressly ask for
static triers
, the jury was improperly
    constituted. In three cases 
Noureddine
,
Grant
and
R. v. Mansingh
,
2017 ONCA 68  this court has grappled
    with the question whether a trial judges use of s
tatic triers
to decide challenges for cause in the absence
    of an accuseds formal application under s. 640(2.1) of the
Code
results in an improperly constituted jury. In all three cases the accused did
    not make a formal application under s. 640(2.1) to exclude all jurors from the
    courtroom. In
Noureddine
,
we held that the jury was improperly constituted. In
Grant
and
Mansingh
,
we held that the jury was properly
    constituted. The result in each case was driven by the position defence counsel
    took at trial.

[23]

In
Noureddine
,
defence counsel not only did not make an application under s. 640(2.1) of the
Code
,
    she repeatedly insisted that rotating triers be used and objected to the use of
    static triers. Despite her objection, the trial judge ordered s
tatic triers
. Doherty J.A. held that the
    trial judges order deprived the accused of his statutory right to choose the
    method of deciding challenges for cause. Doherty J.A. also held that none of
    the curative provisions in the
Code
applied to the trial judges error.
    Thus, he held that the jury was improperly constituted and ordered a new trial.

[24]

In
Grant
, defence counsel first asked for r
otating triers
but also asked that the
    trial judge exercise his discretion to exclude unsworn jurors from the
    courtroom during the challenges. However, defence counsel gave the trial judge
    no reason to exercise his discretion in favour of exclusion. After further
    discussion with counsel, the trial judge gave defence a choice:
rotating triers
with unsworn jurors in
    the courtroom, or s
tatic triers
with
    the jury panel out of the courtroom. Faced with that choice, defence counsel
    said, [w]ell take the s
tatic triers
.
    This court held, at para. 51, that in substance, if not in form, the defence
    had made an application under s. 640(2.1), and so the jury was properly
    constituted:

The defence did not make a formal application under s. 640(2.1)
    to have the sworn and unsworn panels excluded, and to have the trial judge
    appoint static triers. But I would treat their decision to choose static triers
    as, in effect, an application to exclude both unsworn and sworn jurors.
    Otherwise form would supersede substance. Had the trial judge asked one
    additional question, Are you then applying for an order under s. 640(2.1),
    defence counsel would undoubtedly have answered yes.

[25]

Mansingh
confirmed the importance of looking at the substance
    of the defences position, not its form. There, the trial judge told counsel
    his practice was to use static triers, but invited counsel to make submissions
    on rotating triers. Defence counsel said that he mainly wanted the panel
    excluded and added, I actually like static triers. He and Crown counsel then
    discussed the steps to vet the static triers appointed by the trial judge.

[26]

On appeal, Mansingh argued that, as he had not made a formal application
    under s. 640(2.1), the use of static triers resulted in an improperly
    constituted jury. This court rejected that argument and, as in
Grant
,
    emphasized that the defence got what it wanted and, in substance, had made the
    necessary application.

[27]

At para. 12 of its reasons, the panel wrote:

This case is distinguishable from
Noureddine
and is
    governed by
R. v. Grant
, 2016 ONCA 639, at paras. 50-51. At trial,
    defence counsel made it clear that he wanted prospective jurors excluded during
    the challenge process. He was happy to use properly vetted static triers as
    long as the panel was excluded. As stated in
Grant
, substance must
    supersede form. Counsel got what he wanted and, in substance, if not in form,
    made the requisite application under s. 640(2.1). This ground fails.

[28]

In the case before us, as in
Mansingh
, Kossyrine wanted static
    triers. Unlike in
Noureddine,
Kossyrine did not ask for rotating
    triers or object to the trial judges practice of using static triers. His sole
    concern was that the static triers the trial judge identified be properly
    vetted. This courts conclusion in
Mansingh
is entirely appropriate in
    this case: [c]ounsel got what he wanted and, in substance, if not in form,
    made the requisite application under s. 640(2.1). The jury in this case was
    thus properly constituted.

[29]

Although what I have said is sufficient to decide this ground of appeal,
    there is another possible basis to uphold the trial judges use of static
    triers: by relying on s. 686(1)(b)(iv) of the
Code
and treating the
    absence of a formal application under s. 640(2.1) as a procedural
    irregularity. Subsection 686(1)(b)(iv) states:

686 (1) On the hearing of an appeal against a conviction or
    against a verdict that the appellant is unfit to stand trial or not criminally
    responsible on account of mental disorder, the court of appeal



(b) may dismiss the appeal where

(iv) notwithstanding any procedural
    irregularity at trial, the trial court had jurisdiction over the class of
    offence of which the appellant was convicted and the court of appeal is of the opinion
    that the appellant suffered no prejudice thereby.

[30]

In an appropriate case, treating the absence of a defence application
    under s. 640(2.1) as a procedural irregularity that would not affect the
    validity of the conviction seems to have merit. In
Noureddine
, Doherty
    J.A. refers to this possibility at para. 57 of his reasons:

It may be that s. 686(1)(b)(iv) could be applied if an accused
    had agreed to the use of static triers, but had failed to bring the required
    motion under s. 640(2.1). An accuseds willingness to use static triers may be
    enough to render the court properly constituted during the selection process.
    The failure to bring the appropriate motion may be characterized as a
    procedural irregularity potentially curable under s. 686(1)(b)(iv).

[31]

In the case before us, the Crown also suggests that we could rely on s.
    686(1)(b)(iv). As the issue was not fully canvassed it would be unwise to decide
    it on this appeal. The issue is better left to a future appeal where it is
    raised and fully argued by the parties.

[32]

I would not give effect to this ground of appeal.

(2)

Did the trial
    judge err by discharging juror 11 without reasonable cause?

(a)

Discharge
    for reasonable cause

[33]

Under s. 644(1) of the
Code
,
a trial judge may discharge a juror because of illness or for other reasonable
    cause:

644 (1) Where in the course of a trial the judge is satisfied
    that a juror should not, by reason of illness or other reasonable cause,
    continue to act, the judge may discharge the juror.

[34]

Here, over the defences objection, the trial judge discharged juror 11
    after the Crowns opening address to the jury. The trial judge concluded that
    reasonable cause existed to discharge the juror. He gave brief reasons:

I find that [juror 11] has serious problems which impact on his
    ability to concentrate and understand the evidence. These include his broken
    back, his being in a body brace, and is taking medication to control his pain.
    He is using a walker. He also has a significant hearing impairment. In the end,
    I find there is reasonable cause to discharge [juror 11] and replace him with
    the alternate juror. Well proceed in that fashion.

[35]

Kossyrine submits that the trial judges ruling deprived him of a fair
    trial because juror 11 was discharged without reasonable cause. I do not agree
    with this submission. A trial judge has broad discretion under s. 644(1) and
    the trial judge in this case exercised this discretion reasonably. Moreover,
    the discharge of juror 11 did not deprive Kossyrine of a fair trial, as the
    trial judge replaced him with another juror who passed the challenge for cause
    and who Kossyrine chose to sit on the jury.

(b)

The
    proceedings concerning juror 11

[36]

Before the formal jury selection began, the trial judge excused several
    potential jurors who had valid personal reasons for not serving. During this
    initial screening, juror 11 came before the trial judge. Through questioning,
    the trial judge learned that juror 11 was 70 years old, was a retired biology
    professor and walked with a walker because he had broken his back. The trial
    judge was inclined to excuse juror 11 due to his injury, but the juror said he
    did not want to be excused. The trial judge allowed him to remain in the jury
    pool.

[37]

A few days later, juror 11 came before the challenge for cause triers
    and both triers deemed him acceptable. Both the Crown and the defence also
    deemed him acceptable and he became a member of the jury.

[38]

Two days later, after the Crown finished his opening address to the jury,
    the trial judge again spoke to juror 11. During the discussion the trial judge
    learned that juror 11 had a hearing problem, that he used a hearing aid but had
    not yet activated it and that he was on painkillers for his back injury. Still,
    juror 11 said he would like to sit on the jury, though he was not insisting.

[39]

The trial judge then asked both counsel whether they had any concerns
    about juror 11 remaining on the jury. Crown counsel (Mr. Goody) said that juror
    11 did not seem to be listening to or understanding his opening address.

Mr. Goody:
    Well, my lord, based on concerns that we commenced to have after he was
    selected, this side of the room was watching [juror 11] yesterday as closely as
    we could during the opening addressFrom where I was standing it did not seem
    to me that he was listening, or paying particular attention to what I was
    saying.

The Court:
    Thats true, I observed that as well.

.

The Court:
    Well, in addition obviously hes in probably constant pain. Hes tolerating it
    to some extent, but hes on medication to control the pain and that likely will
    cause doziness, or impairment of the cognitive of functions, thats one of the
    difficulties.

Mr. Goody: Yes, and it crossed my mind that he may have been
    somewhat discomforted just by his physical situation. I could also help but
    notice that on the two occasions when the jury was asked to retire, both at the
    break and after the conclusion 

The Court: He didnt understand what I said in plain English 

Mr. Goody: He didnt seem to understand what it was that was
    being asked of him. So, I mean, there is an obvious mobility issue, but I dont
    think thats where were necessarily heading in these remarks. It just seem to
    me that he was having some comprehension problems, which isnt to 

The Court: Well. The mobility issue impacts upon his 

Mr. Goody: Yes.

The Court: On his  obviously his physical state and whether or
    not hes able to follow information.

[40]

Eventually Crown counsel took the position that juror 11 should be
    discharged under s. 644(1) because he was unable to competently fulfill his
    obligations as a juror. Defence counsel opposed the discharge. The trial judge then
    discharged juror 11.

(c)

Analysis

[41]

In his factum, Kossyrine argued that juror 11 was a victim of
    disability-based discrimination. He pointed to the statutory provisions
    showing that a person with a physical disability may sit on a jury and that trial
    judges may now accommodate jurors with physical disabilities. Section 4(a) of
    the
Juries Act
, R.S.O. 1990, c. J.3 provides that although physical
    disability may be a ground for ineligibility, it is not an absolute bar to serving
    on a jury. Under s. 627 of the
Code
, added in 1998, a judge may permit
    a juror with a physical disability who is otherwise qualified to serve as a
    juror to have technical, personal, interpretive or other supportive services.

[42]

The participation of jurors with physical disabilities on Canadian juries
    is important. And s. 627 of the
Code
is a laudable amendment, which
    significantly promotes participation by those with physical disabilities.
    Still, on my reading of the record, the trial judge did not discriminate
    against juror 11 because of his physical disability. The trial judge was
    concerned that juror 11 was unable to perform the duties of a juror.

[43]

As important, Kossyrine, the accused, cannot assert the rights of a
    juror. Both in
R. v. Gayle
(2001), 54 O.R (3d) 36 (C.A.), leave to
    appeal refused, (2002), 159 C.C.C. (3d) vi (note) (S.C.C.) and
R. v. Church
    of Scientology of Toronto
(1997), 33
    O.R. (3d) 65 (C.A.), leave to appeal refused, [1998] 1 S.C.R. vii,
this court affirmed that an accused has no standing to assert t
he
Charter
rights
of individuals deprived of their
    right to serve on a jury. Even if juror 11 had a claim for being discriminated
    against because of his physical disability, that is not a claim Kossyrine can
    maintain.

[44]

Instead, to succeed on his argument concerning juror 11s discharge,
    Kossyrine must show that the trial judge exercised his discretion unreasonably
    under s. 644(1) of the
Code
and by doing so deprived him of a fair
    trial. Kossyrine cannot do so.

[45]

To show that the trial judge exercised his discretion unreasonably,
    Kossyrine relies on the following considerations:

·

juror 11 wanted to continue serving on the jury and expressed no
    reservation about his physical ability to do so;

·

defence counsel objected to juror 11s discharge;

·

the trial judge had no evidence of what painkillers juror 11 was
    taking, or of the side effects of those painkillers, or of whether the side
    effects affected his ability to concentrate during the trial;

·

the trial judge made no inquiries to find out whether other
    jurors were taking medication; and

·

the trial judge did not consider his authority to accommodate
    juror 11s physical disability under s. 627.

[46]

Kossyrine contends that the unreasonable discharge of juror 11 affected
    his fair trial rights because juror 11 was acceptable to the triers and
    initially to both counsel.

[47]

I cannot accede to Kossyrines contention. Juror 11s wishes and defence
    counsels objection may be relevant considerations, but the trial judge was not
    bound by either. The trial judge had to make his own determination whether
    juror 11 was capable of serving as a juror  capable of listening to and
    concentrating on the evidence, and of comprehending and analyzing it.

[48]

The trial judge conducted his inquiries of juror 11 in open court as
    this court mandated in
R. v. Giroux
(2006), 207 C.C.C. (3d) 512 (C.A.), leave to appeal refused, [2006] 2 S.C.R.
    viii
. He thus had to be sensitive to the extent of his inquiries into
    juror 11s personal circumstances, such as the type of painkillers juror 11 was
    using and their effect on him. Also, inquiries of other jurors would not only
    have been inappropriate, they would have been irrelevant to juror 11s
    capability to serve.

[49]

Finally, juror 11s situation was not really about whether he could be
    accommodated, and so s. 627 had no bearing on the trial judges decision. What
    rightly mattered to the trial judge was whether juror 11 was capable of
    carrying out his duties as a juror.

[50]

A trial judge has broad discretion under s. 644(1). The breadth of this
    discretion is reflected in the phrase other reasonable cause and the case law
    interpreting it. Other reasonable cause means any cause that could reasonably
    affect a jurors ability to discharge the duties of a juror in a competent and
    impartial manner: see
R. v. Holcomb
(1973), 12 C.C.C. (2d) 417
    (N.B.S.C. (A.D.)), affirmed [1973] S.C.R. vi and
R. v. Hahn
(1995), 62
    B.C.A.C. 6, leave to appeal refused, [1996] S.C.C.A. No. 139.

[51]

Also, in exercising the discretion under s. 644(1), a trial judge is in
    a far superior position to that of an appellate court. The trial judge is able
    to observe the juror, see how the juror answers questions and listens to
    instructions and watch how the juror reacts to what is going on in the
    courtroom. An appellate court has none of these advantages. For these reasons,
    a trial judges exercise of discretion under s. 644(1) is entitled to
    significant deference from an appellate court.

[52]

In this case, the trial judge had ample reason to discharge juror 11.
    The following considerations demonstrate the trial judge had reasonable cause
    to exercise his discretion under s. 644(1):

·

the trial was projected to last two months (and in fact lasted
    six weeks);

·

during juror 11s first appearance before the trial judge 
    before the formal jury selection proceedings  juror 11 did not hear the trial
    judges questions, and the questions had to be repeated;

·

following the Crowns opening, juror 11 did not appear to hear
    the trial judges questions, which prompted the trial judge to inquire into
    juror 11s use of a hearing aid;

·

juror 11 acknowledged he was taking one or two painkillers every
    four to six hours for severe pain;

·

the trial judge observed that juror 11 did not seem to understand
    his instructions or be able to follow them; and

·

juror 11 did not seem to be following or comprehending the
    Crowns opening address.

[53]

These considerations afforded the trial judge a sound basis to conclude
    that he had reasonable cause to discharge juror 11.

[54]

And the discharge of juror 11 did not deprive Kossyrine of a fair trial.
    Kossyrine was not entitled to have a juror with a physical disability on the
    jury. He was entitled to an impartial and representative jury. He does not
    suggest that the discharge of juror 11 affected the jurys impartiality or
    representativeness. Nor could he. Juror 11 was replaced by an alternate juror
    deemed acceptable by the static triers and counsel.

[55]

I would not give effect to this ground of appeal.

D.

Conclusion

[56]

The trial judges use of static triers did not result in an improperly
    constituted jury. Nor did the trial judges discharge of juror 11 deprive
    Kossyrine of a fair trial. I would therefore dismiss the appeal.

Released: D.W. May 15, 2017

John Laskin J.A.

I agree. David Watt J.A.

I agree. C. W. Hourigan J.A.


