Court attempts to avoid mistrial as 1st COVID-19 jury selection expected next week

A New Brunswick court is still grappling with jury-selection challenges during COVID-19, just as the first potential juror is expected to stand before the judge next week.

The fitness hearing of Matthew Vincent Raymond, the man accused of four counts of first degree murder after a shooting in Fredericton, may be the first jury trial in Canada to begin in the COVID-19 era, the court heard.

Jury selection for a big trial typically means a packed sports arena, hundreds of people summonsed and waiting in one room as they are assigned numbers.

But that process is not possible during the pandemic. Instead, a fraction of the usual number of summonses has gone out -- to accommodate physical distancing -- and jurors will be screened one by one while the rest wait, wearing face shields and sitting or standing six feet apart at the Fredericton Convention Centre.

In an urgent hearing called Thursday afternoon, Raymond's defence lawyer Nathan Gorham said the small number of jurors summonsed is posing an imminent mistrial threat. He's asking the court to find a solution to the potential problem of running out of people before all the jurors are found.

"We foresee that there is a risk here of a mistrial because of the size of the panel and because of potentially low turnout from jurors," he told the court.

"We're just trying to provide lawful routes to the court to hopefully avoid the disaster scenario of a mistrial."

Raymond is charged in the shooting deaths of Const. Sara Burns, Const. Robb Costello, and Donnie Robichaud and Bobbie Lee Wright. They were killed on the morning of Aug. 10, 2018, at an apartment building on Brookside Drive on Fredericton's north side.

He was found unfit to stand trial in October of last year by a jury, who determined his mental illness was an obstacle in communicating with his lawyer. He's been receiving antipsychotic medication against his will on and off since then.

Because he was found unfit, he needs to go through another hearing to determine if there has been a change in his mental fitness.

That fitness hearing is scheduled for Aug. 17, and jury screening and selection will begin on Aug. 11.

Finding 'talesman'

Typically when the court runs out of people, the Crown can ask the sheriff to go out on the street and enlist what they call "talesman," until the jury is complete. But because New Brunswick is still in a state of emergency and dealing with a pandemic, this process was deemed too unsafe for the sheriffs and the public.

So Gorham is asking the court to consider summonsing a whole other panel immediately, and have them wait on standby in case the first panel isn't enough.

"Both sides agree that the sheriff won't go out in the street and just pull people out at random," he said.

However, Crown prosecutor Jill Knee, said the second panel can only be summonsed once the first runs out.

"I don't see the mechanism of another panel to be sitting in the wings," she said.

Justice Larry Landry, who was recently assigned to the case after the previous judge recused himself, said he will make a decision in the next few days. If he sides with Gorham, he may instruct the court to immediately send out more summonses. 

"Time is of the essence so I wanted both parties to have their say," Landry said.

Landry put a publication ban in place on these discussions at the beginning of the hearing, but removed it at the end, except for a few details. 

He said having a jury trial in light of the COVID-19 pandemic is challenging, but the court "is trying to make everything possible."

"It's all new events, and we can't foresee how it will go, so we will try to make the appropriate decisions so it will go ahead as planned," he said.