A Yukon Supreme Court justice declared a mistrial this morning after the jury selection process in a case involving charges of impaired driving and driving while disqualified.

Arthur Frankie Joe was to be tried before Justice Suzanne Duncan.

The trial had been scheduled for four days, with the jury selection beginning on Tuesday.

Joe is facing one count of impaired driving, one count of being over the legal limit, one count of driving while disqualified and a breech of conditions. They date back to Oct. 11, 2018 in Whitehorse.

Vincent Larochelle, Joe’s lawyer, raised an issue regarding the jury selection process. He explained that his client has a right to a fair trial by an impartial jury. He added that this includes a fair jury selection process.

His complaint centred on two components, one being the lack of First Nations representation, and the other what he called the improper dismissals of three potential jurors. He argued that these panelist were otherwise qualified.

Larochelle argued that these disqualifications violated his client’s right to be tried by a jury of his peers that was properly vetted. He added this is an important right.

He also wants to amend his client’s bail conditions. He indicated that if Joe cannot have his conditions modified, his client was to proceed to trial.

Crown prosecutor Leo Lane agreed with the mistrial declaration. He said the appearance of fairness was compromised.

“The safest course would be to declare a mistrial,” Lane said.

In her oral reasons for judgment this morning, Duncan explained that she cannot grant new bail conditions, before declaring the mistrial.

She indicated this is because the mistrial would lead to new bail conditions being needed.

She referenced correspondence from last Friday between the counsels and the sheriff, where the jury list was sent. This list was then forwarded to the RCMP for a criminal record check.

Police, at first, indicated Monday they could not get this done in a timely manner, but were able complete the request.

During this check, three potential jurors were deemed to be ineligible due to having a criminal record.

The sheriffs thus dismissed these three people.

Counsel argued that the bar had been set too high.

The decision was reviewed, and it was concluded that these three dismissals were improper.

Only one of these individuals could be reached and informed of the mistake. Sheriffs tried to contact the other two, without success. They did not attend Tuesday’s jury selection.

The two who were absent had their names drawn.

Duncan said the question she needed to answer was whether this mistake invalidated the jury and warranted a new trial. She felt it did, as it impacted Joe’s right to a properly selected impartial jury.

She explained that an impartial jury is paramount to a fair trial.

That said, she affirmed that Joe does not have the right to demand equal representation from all groups from which jurors must be drawn at random, involving a broad range of people.

“Here, this was done, but there was an error,” Duncan said.

She said no one knew how the attendance of these two individuals might have changed the process, but their absences had an impact nonetheless.

She added the error may have happened outside court, but it made its way into court.

She was unsure how this was allowed to happen, but hopes in the future a more timely approach can be used.

Duncan was not prepared to issue a decision on bail this morning. She said she wants more information on Joe’s living arrangements, sureties and plans for attending treatment programs.

She hopes to hear submissions in this regard at 2 p.m. Thursday, and to schedule a new trial.

After her decision, the jury was brought in. Duncan explained the situation and dismissed its members.

“We can’t proceed with you as jurors,” she advised them.